R. v. Curtone
The fresh evidence of Jennifer Houben was admissible because it was sufficiently credible and, when considered alongside identified frailties in the photo identification process and witness identification, could reasonably be expected to have affected the verdict; accordingly the convictions were set aside and a new...
Source-derived case information.
- Citation
- C41049
- Parties
- Appellant: Giovanni Curtone; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 7 October 2005
- Procedural Posture
- Criminal / Appeal From Conviction to Court of Appeal; Fresh Evidence Application on Appeal
- Outcome
- Appeal allowed; convictions set aside; new trial ordered.
- Legal Topics
- Fresh Evidence, Identification Evidence, Unsafe Conviction, New Trial, Evidentiary Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giovanni Curtone
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Conviction to Court of Appeal; Fresh Evidence Application on Appeal
Legal Issues
- 1 Whether the verdict was unreasonable/conviction unsafe
- 2 Whether fresh evidence of Jennifer Houben should be admitted
- 3 Whether frailties in the identification procedure undermined the conviction
Ratio Decidendi
The fresh evidence of Jennifer Houben was admissible because it was sufficiently credible and, when considered alongside identified frailties in the photo identification process and witness identification, could reasonably be expected to have affected the verdict; accordingly the convictions were set aside and a new trial ordered.
Court Disposition
Appeal allowed; convictions set aside; new trial ordered.
Orders
- Fresh evidence of Jennifer Houben admitted
- Convictions set aside
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Curtone Collection Decisions of the Court of Appeal Date 2005-10-07 Docket numbers C41049 Judges Catzman, Marvin Adrian; Rosenberg, Marc; Juriansz, Russell G. Subject Criminal Decision Content DATE: 20051007 DOCKET: C41049 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – GIOVANNI CURTONE (Appellant) BEFORE: CATZMAN, ROSENBERG and JURIANSZ JJ.A. COUNSEL: Graham T. Clark for the appellant Roger Shallow for the respondent HEARD & ENDORSED: September 30, 2005 On appeal from conviction by Justice Peter A. Grossi of the Superior Court of Justice dated September 11, 2003. APPEAL BOOK ENDORSEMENT [1] This was not an unreasonable verdict. Several witnesses identified the appellant as the perpetrator and at least one, Travis Richards, claimed to recognize the appellant as the perpetrator. [2] We are, however, satisfied that the fresh evidence of Jennifer Houben should be admitted. There are some concerns with the proposed evidence but the evidence is sufficiently credible in the sense that it is reasonably capable of belief. [3] If believed, that evidence could reasonably be expected to have affected the result. While the verdict is not unreasonable, there were frailties with the identification procedure (e.g. there was no sequential photo line-up and the appellant’s photo appeared in the same spot in all the arrays). There were also some frailties in the identification evidence of the witnesses. [4] Accordingly, the fresh evidence of Jennifer Houben is admitted. The appeal is allowed, the convictions are set aside and a new trial ordered.