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R. v. Hungwe, [2018] O.J. No. 2618

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    R. v. Hungwe, [2018] O.J. No. 2618  Ontario Judgments Ontario Court of AppealH.S. LaForme, D. Watt and I.V.B. Nordheimer JJ.A.Heard: May 1, 2018.Judgment: May 16, 2018.Dockets: C59259, C59391, C59745, C60311 and C60354 [2018] O.J. No. 2618  | 2018 ONCA 456 | 142 O.R. (3d) 22 | 147 W.C.B. (2d) 552 |  361 C.C.C. (3d) 534 | 2018 CarswellOnt 7612Between Her Majesty the Queen, Respondent, and Dennis Hungwe, Christian Nkusi, Moussa Daoui, Richard Issachar Ellis and Geovanni Nicholas Ellis, Appellants(79 paras.) Case Summary Criminal law — Procedure — Trial judge's duties — Charge or directions — Trials — New trial, grounds for — Appeals by accused from convictions resulting from home invasion robbery allowed — New trial ordered — Cumulative effect of trial judge's interventions and comments in his charge prejudiced appellants' right to fair trial — Tenor of trial judge's questions of defence witnesses could leave reasonable person with no other impression except that trial judge did not believe defence witnesses — Impression reinforced by comments during jury instructions — Deficiencies in instructions to jury panel regarding duties of the triers were not so serious as to warrant new trial — Instruction on prior consistent statements adequate. Appeals by the accused from convictions resulting from a home invasion robbery. The appellants argued that the trial was rendered unfair by certain conduct of the trial judge, that the trial judge gave inadequate instructions to the triers during jury selection on the challenge for cause process and that the trial judge failed to properly charge the jury in respect of prior consistent statements made by the complainant. The trial judge extensively questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory of the case. While defence counsel did not object to the questioning at the time, they did raise an objection later and asked that the trial judge include a specific instruction in his jury charge to ameliorate the effect of his questions. The trial judge refused to provide any such instruction. There were a number of instances where the trial judge, as he was instructing the jury, departed from the written jury charge that had been reviewed by counsel. The various extemporaneous comments made by the trial judge, during the course of his charge to the  jury, were all directed against the defence. HELD: Appeal allowed. New trial ordered. The cumulative effect of the trial judge's interventions and comments in his charge prejudiced the appellants' right to a fair trial. The tenor of the trial judge's questions could leave a reasonable person with no other impression except that the trial judge did not believe the defence witnesses. The biased impression against  Page 2 of 20R. v. Hungwe, [2018] O.J. No. 2618the appellants left by the trial judge was then exacerbated by his various comments to the jury during the course of his jury instructions. The questions asked by the trial judge, and the manner in which they were asked, seriously compromised the appearance of a fair and impartial trial. There could be no doubt in the minds of the  jurors, or to an outside reasonable observer, that the trial judge had aligned himself with the Crown in this prosecution. That impression was only reinforced by the comments offered by the trial judge during the course of his jury instructions. While there were deficiencies in the instructions that the trial judge gave respecting the duties of the triers, the trial judge did communicate the essential elements of a trier's duties. A review of the challenge process did not suggest any misapprehension by the triers in terms of those duties. The deficiencies in the trial judge's instructions to the jury panel regarding the duties of the triers were not so serious as to warrant a new trial. Although an instruction on prior consistent statements ought to have been given by the trial judge, especially after counsel requested one, the trial judge did communicate the essential element of a prior consistent statement instruction in the portion of his jury charge. While it was not the best way to communicate the point about prior consistent statements, it was sufficient. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, s. 11(d) Appeal From: On appeal from the convictions entered on October 4, 2013 and sentence imposed on January 24, 2014 by Justice Albert Roy of the Superior Court of Justice, sitting with a jury. Counsel Michael Davies and Meaghan McMahon, for the appellant, Dennis Hungwe.Anthony J. Does, for the appellant, Christian Nkusi.Howard L. Krongold, for the appellant, Moussa Daoui.John Hale, for the appellant, Richard Issachar Ellis.Jonathan Dawe, for the appellant, Geovanni Nicholas Ellis.Andreea Baiasu, for the respondent.The judgment of the Court was delivered by  Page 3 of 20R. v. Hungwe, [2018] O.J. No. 2618 I.V.B. NORDHEIMER J.A. 1  The five appellants were tried jointly on a multi-count indictment in the Superior Court of Justice in Ottawa before the trial judge sitting with a jury. The charges all arose out of what was alleged to have been a home invasion robbery. The charges included robbery; being unlawfully in a dwelling-house; pointing a firearm; possession of a prohibited firearm; and unlawful confinement. After a 20-day trial, the jury found each of the five appellants guilty on most of the charges against them. 1 2  The appellants appeal from these convictions on the basis that: (i) the trial was rendered unfair by certain conduct of the trial judge and (ii) the trial judge erred in his instructions to the rotating triers with respect to the challenge for cause process during jury selection. The appellant, Dennis Hungwe, further appeals on the basis that (iii) the trial judge erred in his jury instructions in respect of the use of prior consistent statements. Finally, the appellant, Richard Ellis, seeks leave to appeal his sentence in the event his conviction appeal is unsuccessful. 3  The record shows that the trial judge questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory of the case. In my view, the cumulative effect of the trial judge's interventions, and comments in his charge, prejudiced the appellants' right to a fair trial. I would therefore allow the conviction appeals and order a new trial. As such, there is no need to address Richard's sentence appeal. Background facts -- the Crown's case4  In February 2012, Gilbert Carby, then 46 years old, lived at 300 Glynn Avenue in Ottawa with his partner and their respective daughters. The house was a bungalow with a finished basement. 5  Carby testified that he operated his own business promoting music events and parties. The defence maintained that he was also a drug dealer and pimp. Carby denied this, but acknowledged that he had previously been in the business of pimping and had a prior conviction for drug importing. He also admitted that he kept marijuana in the house for his own use, which he shared with his teenaged daughter. He denied that he sold drugs to other people or that he kept a gun for protection. 6  Carby had a recording studio in his basement that he rented out as part of his music promotion business. The rest of the basement was geared for entertainment , with a bar, dance floor, pool table, large screen TV, and video game consoles. Carby described it as kind of like a rec centre, like a drop-in, as it were, for people to come and play games and chill . He frequently hosted poker games that typically attracted around 18 players and lasted until 3:00 a.m. or 4:00 a.m. He agreed that his guests and the musicians who used his basement studio often drank and smoked marijuana and sometimes fell asleep and spent the night there. However, Carby denied selling them alcohol or drugs, or running his poker games for profit. 7  On the night of February 1, 2012, Carby hosted a poker game in the basement of his home. He testified that, at around midnight, the appellant Christian Nkusi, who Carby knew by the nickname Weezy , called to ask whether there was poker game that night. Nkusi was a friend of the daughter of Carby's partner and had played poker at the house before. Carby told Nkusi  Page 4 of 20R. v. Hungwe, [2018] O.J. No. 2618 they were not playing poker that night but that there would be a game the next day. Both of these things were untrue. Carby explained at trial that he had lied to Nkusi because the game had already started and he wanted to get him off the phone. 8  Carby testified that on the following night, February 2, 2012, he went to lie down in his basement bedroom between 9:00 p.m. and 10:00 p.m. He was not sure who else was in the house besides his partner and the children, but thought that two of his friends were probably in the basement. At around 11:30 p.m., Carby's partner told Carby that she was going out to visit her sick mother. Carby fell asleep a short while later. 9  Carby testified that at around 4:00 a.m. on February 3, 2012 he received a phone call from Nkusi, who asked if there was a poker game that night. Carby said there was no game, and Nkusi then asked if Carby had any weed , to which Carby replied no . A few minutes later, Carby's partner called and said she would be returning home in about ten minutes. When Carby heard knocking at the back door a few minutes later, he assumed it was her and went upstairs to let her in. Carby said that he was only wearing boxer shorts. Instead of his partner, Carby found two black guys , both strangers, standing outside. He opened the back door and the men asked whether he had any weed. Carby replied that he did not. At this point two other men, also strangers, appeared and entered the kitchen. Carby testified that one of these men was black. The other looked Lebanese. At trial, Carby identified the first two black men as Dennis Hungwe and Geovanni Ellis, the third black man as Richard Ellis, and the Lebanese man as Moussa Daoui. However, Carby said that he had never seen any of them before and did not know any of their names at the time 10  Carby testified that Daoui opened the freezer door and looked inside. Richard said, It is what it is and drew a gun. Daoui then hit Carby in the face with something in his hand. Carby retreated downstairs to the basement bar area, and the four men followed. They took Carby into his bedroom and demanded: Where's all the money at? We know you have money and we know you have drugs . One of the men tried unsuccessfully to use the belt from Carby's pants to bind his hands. Richard then put his gun to Carby's head while Daoui held a knife to his throat and they demanded money again, saying they would not leave without it. When Carby continued to insist that he had no money or drugs, the four men beat [him] up for a good ten seconds and then took him out to the bar area. 11  At this point, Richard gave his gun to one of the other men to watch Carby while he tore some phone wire out of the ceiling which he used to tie Carby's wrists. Meanwhile, the other two men were going around the basement rounding up equipment, like Xboxes and the big screen TV and piling it at the bottom of the stairs. When they moved a couch that blocked the entrance to Carby's recording studio they discovered one of Carby's friends, who Carby had not previously realized was in the basement. Carby heard the men shout in surprise and then what sounded like them beating the friend, and the friend screaming. Carby's friend testified that one of the black men cut his face with a knife. 12  Carby testified that, shortly after the men brought him to the bar, one of them came down the stairs and announced that the police were there. At this point, the men all changed their tone and began telling Carby to clean up his face. They addressed him as Gilly and acted like they knew [him] even though he did not know any of them. The men went into Carby's bedroom and tried to climb out the back window, but it was too small. When they returned to the bar, Carby lied and told them that they could get to an exit by going through the storage room at the back of
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