Conviction based on one eyewitness who saw one photo of accused soon after event was of concern

Criminal Law - Appeals - Evidence

While driving unmarked police vehicle, police officer was passed by another vehicle travelling at high rate of speed. Officer activated lights, but vehicle failed to stop. Officer noted make and licence plate of vehicle and learned it was registered to rental company and had been rented by accused. Officer attended vehicle rental business on date vehicle was to be returned and spoke with accused’s employee, who was person that returned vehicle. At trial, officer claimed that he observed driver for seven to nine seconds and that during that time driver removed sunglasses and looked directly at him, he later identified driver as accused from photograph in Ministry of Transportation records and that person who returned vehicle was not person driving vehicle on day of offence. Accused denied driving vehicle on day of offence and claimed driver was likely employee whom he had asked to return vehicle. Trial judge rejected accused’s evidence that he was not driver, accepted evidence of police officer, and convicted accused of dangerous driving, failing to stop for police and speeding. Accused appealed and sought to admit fresh evidence, being cell phone records indicating he was in another city, to show he was not driver. Appeal allowed; New trial ordered. Accused did not act with due diligence as he was aware of cell phone records prior to trial, but did not inform trial counsel about them because he did not think they would help. Evidence was relevant to issue of identity of driver, which was critical issue at trial. Cell phone records appeared to be credible and there was no evidence cell phone was used by anyone other than accused on offence date. Fresh evidence, if believed, could reasonably have been expected to have affected verdict, when taken with other evidence. Although there was failure of due diligence, conviction based on one eyewitness identification where witness had seen single photograph of accused soon after event was of concern to administration of justice. As fresh evidence was admissible, but not conclusive, new trial ordered.

R. v. Moucho (2019), 2019 CarswellOnt 9133, 2019 ONSC 3463, F. Dawson J. (Ont. S.C.J.).

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