R. v. Kuyumcuoglu

R. v. Kuyumcuoglu Collection Decisions of the Court of Appeal Date 2000-01-12 Docket numbers C29641 Judges McMurtry, Roy; Rosenberg, Marc; Moldaver, Michael James Subject Criminal Decision Content DATE: 20000112 DOCKET: C29641 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. HAGOP KUYUMCUOGLU (Appellant) BEFORE: McMURTRY C.J.O., ROSENBERG and MOLDAVER JJ.A. COUNSEL: Hagop Kuyumcuoglu, the appellant, in person Jennifer Woollcombe, for the respondent HEARD: November 22, 1999 On appeal from the decision of Mr. Justice Michael Dambrot dated April 3, 1998 ENDORSEMENT [1] This is an appeal from the decision of Dambrot J. dismissing the appellant’s appeal from conviction. Dambrot J. did allow the sentence appeal in part by striking out the term of probation requiring the appellant to complete two hundred hours of community service. However, the appellant also seeks to appeal the sentence. [2] As this is an appeal from the summary conviction appeal court, the appellant is restricted to questions of law alone. The appellant raises two issues. He argues that Kerr Prov. Ct. J. unduly intervened and that when the record is read as a whole it appears that the trial judge was not satisfied of the appellant’s guilt beyond a reasonable doubt. [3] Dambrot J. considered the question of undue intervention and was satisfied that the interventions did not show bias nor prevent the appellant from presenting his case. The test for whether there has been undue intervention was described by Martin J.A. in R. v. Valley (1986), 26 C.C.C. (3d) 207, at 230: A criminal trial is, in the main, an adversarial process, not an investigation by the judge of the charge against the accused, and, accordingly, the examination and cross- examination of witnesses are primarily the responsibility of counsel. The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted. Generally speaking, the authorities recommend that questions by the judge should be put after counsel has completed his examination, and the witnesses should not be cross-examined by the judge during their examination-in-chief. [4] In our view, most of the interventions by the trial judge, prior to the finding of guilt, were innocuous and intended by the judge to clear up ambiguities and assist him in understanding the appellant’s unusual explanation. While it would have been better if the trial judge had followed the advice of Martin J.A., we are not satisfied that Dambrot J. erred in law in refusing to give effect to this ground of appeal. [5] As to the second ground of appeal, having considered the entire record, we are of the view that the trial judge was satisfied of the appellant’s guilt to the requisite degree. The trial judge clearly rejected the primary defence, that the appellant did not steal the goods but rather brought them with him to the store. This left only the question of mens rea. The appellant never asserted that he took the goods to test the social assistance people who he claimed were following him. His position was that he did not take them. We see no error in the trial judge’s conclusion that the appellant had the requisite mens rea. His subsequent comments and directions were directed to ensuring that an appropriate sentence was imposed and do not detract from the finding of guilt. [6] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is refused. (signed) "R. McMurtry C.J.O." (signed) "M. Rosenberg J.A." (signed) "M. J. Moldaver J.A."