The lawyer representing the Crown made no reference to the very live issue of when Mr. Pryce's observations of the man sharpening the machete was made in his closing address to the jury. He skillfully made the following points to the jury:
1. Joseph Price got it right,
2. Joseph Pryce is an honest, hard working,
decent citizen with no axe to grind,
with nothing against the accused,
3. you can trust him; and
4. the deceased died by a sharp instrument to her neck.
Excerpt from Smith
Appeal factum:
"It is respectfully submitted that the misstatement of fact
regarding when Mr. Pryce saw the man with the machete was
highly prejudicial. One of the primary frailties of
identification is timing. If someone could not have been
there because they were somewhere else, i.e. alibi, this is
strong evidence of false identification. Here, at the times
given by Mr. Pryce, the Appellant was already arrested and in
custody. By incorrectly stating that Mr. Pryce saw the person
10 or 11 months before the police came, the learned trial judge
effectively took away this alibi. (R v. Quercia (1990) 60 C.C.C.
(3d) 380 (Ont.C.A.)"
Excerpt from Crown
Counsel's closing
statement to jurors:
"Joseph Pryce isn't a witness who came forward, who
volunteered, who was anxious to be here. He saw a picture
on tv - the accused. His picture was released to the t.v.
It's a sideways black and white just like Joseph Pryce said.
Joesph Pryce is also a careful man. He said, "I couldn't tell.
I couldn't be fair from that picture. It wasn't good enough
for him to identify the person. The caution that you have to
use in your justy room Joesph Pryce was using as well ladies
and gentlemen. He was being as cautious as you hae to be after
listen to what his lordship will tell you. He exercised some
restraint and he said, I looked at that picture and I thought
there's the guy who came in and sharpened the machete, but I
wasn't sure. Joseph Pryce wanted to be fair. Can you have any
doubt, ladies and gentlemen, that Joseph Pryce is anything but
an honest, hard working, decent citizen with no axe to grind,
with nothing against the accused ? He just came here and told
you exactly what he saw and did not get it wrong."
The Crucial Misstatement
by the trial judge (Justice Ewaschuk):
"Notwithstanding those limitations, Mr. Pryce identified
the accused later from a 12 man photo array as the
person with the machete. Obviously, the identification
was made at least ten to eleven months after Mr. Pryce
had seen the man with the machete at the machine shop."
COMMENTARY:
The identification evidence tendered by the prosecution against Wilton Smith at his trial for first degree murder comes dismally short of the standard of a fair trial. Clearly, Joseph Pryce did not testify at the preliminary inquiry. This is clear because police maintain they attended at his shop on January 25th, 1993 - a mere five days following Mr. Smith's first attendance in Superior Court on January 20th, 1993. Mr. Pryce or the Crown seems to suggest in his closing at least that Mr. Pryce may have responded to a photo of Mr. Smith which was published on the news. The following questions come to my mind and require answers:
1. Was there in fact any publication of Mr. Smith's
photo by any Toronto area broadcasters in and
around the time of his arrest ?
2. If there wasn't Mr. Pryce's testimony is unreliable.
3. How was the initial police contact made ?
4. Reading between the lines in the Crown's closing on this
point one is left with the distinct impression that Mr.
Pryce saw the photo on tv and contacted the police who
then attended with their photo-lineup. Was there in fact
evidence on this point called at the trial ?
5. What does Crown counsel mean by this - "Joseph Pryce
isn't a witness who came forward, who volunteered, who
was anxious to be here. He saw a picture on tv - the
accused. His picture was released to tv. It's a sideways
black and white just like Joseph Pryce said. Joseph Pryce
is also a careful man. He said, I couldn't tell. I couldn't
be fair from that picture. It wasn't good enough for him to
identify the person. The caution that you have to use in your
jury room Joseph Pryce was using as well, ladies and gentlemen."
6. Did the police also show Mr. Pryce the picture they maintain
was published on tv along with the 12 man photo-lineup on
January 25th, 1993 ?
7. Did the police show the photo array shown to Mr. Pryce to
anyone else ?
8. Did the police make any inquiries as to when Mr. Pryce made
his observations ?
September 15th, 2010
E.J. Guiste.
1. Joseph Price got it right,
2. Joseph Pryce is an honest, hard working,
decent citizen with no axe to grind,
with nothing against the accused,
3. you can trust him; and
4. the deceased died by a sharp instrument to her neck.
Excerpt from Smith
Appeal factum:
"It is respectfully submitted that the misstatement of fact
regarding when Mr. Pryce saw the man with the machete was
highly prejudicial. One of the primary frailties of
identification is timing. If someone could not have been
there because they were somewhere else, i.e. alibi, this is
strong evidence of false identification. Here, at the times
given by Mr. Pryce, the Appellant was already arrested and in
custody. By incorrectly stating that Mr. Pryce saw the person
10 or 11 months before the police came, the learned trial judge
effectively took away this alibi. (R v. Quercia (1990) 60 C.C.C.
(3d) 380 (Ont.C.A.)"
Excerpt from Crown
Counsel's closing
statement to jurors:
"Joseph Pryce isn't a witness who came forward, who
volunteered, who was anxious to be here. He saw a picture
on tv - the accused. His picture was released to the t.v.
It's a sideways black and white just like Joseph Pryce said.
Joesph Pryce is also a careful man. He said, "I couldn't tell.
I couldn't be fair from that picture. It wasn't good enough
for him to identify the person. The caution that you have to
use in your justy room Joesph Pryce was using as well ladies
and gentlemen. He was being as cautious as you hae to be after
listen to what his lordship will tell you. He exercised some
restraint and he said, I looked at that picture and I thought
there's the guy who came in and sharpened the machete, but I
wasn't sure. Joseph Pryce wanted to be fair. Can you have any
doubt, ladies and gentlemen, that Joseph Pryce is anything but
an honest, hard working, decent citizen with no axe to grind,
with nothing against the accused ? He just came here and told
you exactly what he saw and did not get it wrong."
The Crucial Misstatement
by the trial judge (Justice Ewaschuk):
"Notwithstanding those limitations, Mr. Pryce identified
the accused later from a 12 man photo array as the
person with the machete. Obviously, the identification
was made at least ten to eleven months after Mr. Pryce
had seen the man with the machete at the machine shop."
COMMENTARY:
The identification evidence tendered by the prosecution against Wilton Smith at his trial for first degree murder comes dismally short of the standard of a fair trial. Clearly, Joseph Pryce did not testify at the preliminary inquiry. This is clear because police maintain they attended at his shop on January 25th, 1993 - a mere five days following Mr. Smith's first attendance in Superior Court on January 20th, 1993. Mr. Pryce or the Crown seems to suggest in his closing at least that Mr. Pryce may have responded to a photo of Mr. Smith which was published on the news. The following questions come to my mind and require answers:
1. Was there in fact any publication of Mr. Smith's
photo by any Toronto area broadcasters in and
around the time of his arrest ?
2. If there wasn't Mr. Pryce's testimony is unreliable.
3. How was the initial police contact made ?
4. Reading between the lines in the Crown's closing on this
point one is left with the distinct impression that Mr.
Pryce saw the photo on tv and contacted the police who
then attended with their photo-lineup. Was there in fact
evidence on this point called at the trial ?
5. What does Crown counsel mean by this - "Joseph Pryce
isn't a witness who came forward, who volunteered, who
was anxious to be here. He saw a picture on tv - the
accused. His picture was released to tv. It's a sideways
black and white just like Joseph Pryce said. Joseph Pryce
is also a careful man. He said, I couldn't tell. I couldn't
be fair from that picture. It wasn't good enough for him to
identify the person. The caution that you have to use in your
jury room Joseph Pryce was using as well, ladies and gentlemen."
6. Did the police also show Mr. Pryce the picture they maintain
was published on tv along with the 12 man photo-lineup on
January 25th, 1993 ?
7. Did the police show the photo array shown to Mr. Pryce to
anyone else ?
8. Did the police make any inquiries as to when Mr. Pryce made
his observations ?
September 15th, 2010
E.J. Guiste.
No comments:
Post a Comment