R. v. Davis

R. v. Davis

The appeal against conviction failed because the alleged fresh evidence did not satisfy the Palmer test: the source and unavailability of the impeaching material were not demonstrated (failing the due diligence requirement) and, given independent identification evidence (witness wife) and compelling corroboration...

Source-derived case information.

Citation
C40468
Parties
Respondent (crown): Her Majesty the Queen; Appellant/accused: Everald Davis
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
11 December 2006
Procedural Posture
Criminal Appeal / Court of Appeal Appeal From Conviction and Sentence (conviction by Jury and Sentence Imposed by Superior Court)
Outcome
Appeal against conviction dismissed; leave to appeal sentence granted but appeal against sentence dismissed.
Legal Topics
Identification Evidence, Fresh Evidence, Admissibility of New Evidence, Trial Fairness and Integrity, Sentencing Concurrency Vs. Consecutive Sentences, Kidnapping, Use of Firearm, Unlawful Confinement
Source Language
english
Criminal Law Identification Evidence Fresh Evidence Admissibility of New Evidence Trial Fairness and Integrity Sentencing Concurrency Vs. Consecutive Sentences Kidnapping Use of Firearm +1 more

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Parties

Her Majesty the Queen

Respondent (crown)

Everald Davis

Appellant/accused

Procedural Posture

Criminal Appeal / Court of Appeal Appeal From Conviction and Sentence (conviction by Jury and Sentence Imposed by Superior Court)

Legal Issues

  1. 1 Whether post-conviction evidence about the complainant's aliases, criminal record and deportations constitutes fresh evidence warranting a new trial
  2. 2 Whether the fresh evidence meets the Palmer test (due diligence, relevance to a decisive issue, credibility, and potential to affect the result)
  3. 3 Whether the trial was unfair due to alleged non-disclosure or misconduct by the Crown

Ratio Decidendi

The appeal against conviction failed because the alleged fresh evidence did not satisfy the Palmer test: the source and unavailability of the impeaching material were not demonstrated (failing the due diligence requirement) and, given independent identification evidence (witness wife) and compelling corroboration (cell phone records), the new material could not be expected to have affected the verdict. The sentence appeal failed because, although concurrency might have been anticipated for closely related events, the overall sentence was fit and did not warrant appellate interference.

Court Disposition

Appeal against conviction dismissed; leave to appeal sentence granted but appeal against sentence dismissed.

Orders

  • Appeal against conviction dismissed
  • Leave to appeal sentence granted