Summary
38821
Thomas Duong v. Her Majesty the Queen
(British Columbia) (Criminal) (By Leave)
Keywords
Criminal law — Convictions — Appeal — Evidence — Transcripts of intercepted communications accurately set out words spoken — Trial judge departs from wording and speaker identified in one transcript without providing notice to parties — Whether curative proviso applies — Trial judge draws unreasonable inference from some of the evidence — Whether Court of Appeal erred in treatment of unreasonable inference — Whether verdict is reasonable?
Summary
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Following a shooting in a park in Richmond, B.C., Mr. Duong and a co-accused were charged with attempted murder and unlawful discharge of a weapon. The Crown’s case against Mr. Duong depended on circumstantial evidence. It included surveillance before and after the shooting, intercepts of Mr. Duong’s conversations with his co-accused in the co-accused’s vehicle before and after the shooting, and gunshot residue evidence. The parties filed signed admissions. Mr. Duong was convicted on both charges. In her reasons for conviction, the trial judge held that two utterances in one intercept differed from what was set out in the transcript agreed to and filed by the parties and who spoke one of the utterances differed from the transcript. She did not advise counsel of her intent to depart from the transcript or provide an opportunity to make submissions. The trial judge also inferred that before the shooting Mr. Duong had directed his girlfriend to use his car to draw the attention of the police away from him. Mr. Duong appealed. The Court of Appeal agreed that the trial judge erred but upheld the convictions.
Lower Court Rulings
Provincial Court of British Columbia
60320-1
Court of Appeal for British Columbia (Vancouver)
2019 BCCA 299, CA45237
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