Trial Pre-Charge Conference, Concerns of the Crown

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SUPERIR COURT OF JUSTICE

BETWEEN HER MAJESTY THE QUEEN -AND- WEIZHEN TANG

BEFORE THE HONOURABLE MR. JUSTICE ALFRED O’MARRA ATTORONTOCOURTHOUSE,361University Ave,  ON October 26, 2012

TRIAL PRE-CHARGE CONFERENCE, CROWN CONCERNS AND DEFENCE

APPEARANCES:

R. Gatrell, Esq

G. MacDonald, Esq

For the Crown

W. Tang                                                                      self-represented

P. Boughy, Esq                                                           Amicus Curiae

Pre-charge Conference

Friday, October 26, 2012

THE COURT:  Are the parties prepared to discuss the charge aspects?

MR. BOUSHY: There is just a few things I would like to point out to the court on your charge, Your Honour.

The Court: All right

MR. GATTTRELL: I had not prepared for today, but I will listen to what my friend has to say.

THE COURT: today  is the day because you are going to be addressing the jury on Monday.

MR. GATTRELL: yes, I understand that.

MR. BUOGHY: Actually just a few things. Obviously, you know, the standard charge with regard to how to assess evidence in terms of, you know, when witnesses adopt statements and when witnesses are challenged in terms of inconsistencies and what- not. Those are the standard aspects of the charge, that I don’t think there is any need, with respect, your Honour, for me to address. These are standard parts of the charge. I don’t think there is any  disagreements between my friends as to how, for example, a witness’ statement should be treated when he adopts an inconsistency or how that particular inconsistency should be treated when it’s not adopted. So there is nothing with regard to that area of the law in terms of inconsistent statements put to witnesses that I think deserve any special treatment, but there is a few things I wish to address, and your Honour made mention of this when Mr. Tang was asserting, you know, this bias against the TD bank and how that occurred. This was in the afternoon of October 17 when he was speaking about these UPS packages delivered to his home, and Your Honour will recall that that was on the heels of him sobbing in front of the jury just before the lunch break. So with regard to those aspects of the trial, whether it’s Mr. Tang crying or the TD bank closing down his account and him alleging bias, or indeed, on that February 27 video when the investors are essentially freaking out at Mr. Tang, certainly – and You Honour alluded to this – the irrelevance of prejudice and sympathy I s going to be, I would respectfully summit, a big of your charge, and all I would ask Your Honour, is that when you are speaking of the jurors mention here, and that as the trier of fact, to make the decision without sympathy, prejudice or fear, I would ask that you make as an example or bring to their attention, the investors noticeable upset on February 27 video, one, and to obvious bounce that out, examples of Mr. Tang crying, or the TD Bank closing his account in the midst of the trial. So when addressing the jurors of the irrelevance of prejudice and sympathy, I would ask your Honour not only point out the prejudice of the TD Bank situation to the Crown ‘s case, but also in particular, the prejudice of the emotional aspect of the February 27  video , because  with respect, your Honour, providing that particular example from the 27th video, I think the potential for prejudice from that video can do immense harm to Mr. Tang’s defence.

THE COURT: Isn’t that contrary to the evidence that he gave, that they were are quite pleased with him because of his high skills as a trader and that they wanted to give him money and that he made reference to a second video that has not materialized, but a second video or some portion of that video that showed them in a much more congenial mood?

MR. BOUSHY: this is true, except, your Honour, my friend specifically questioned him on the investors being upset and wanting to kill him and how Peter Lin saved him. There was a point yesterday where my friend indicated to Mr. Tang how Peter Lin saved him from being beaten up by investors, and Mr. Tang acknowledged all that. So Mr. Tang has not been inconsistent with regard to the upset of the investors on that particular meeting, and he is particularly questioned by my friend on that and so acknowledged that his investors were upset at him, and my recollection is that in essence he was sort of lucky that he wasn’t beaten up, and my friend specifically mentioned the word” beaten up”, or how he escaped a beating, and Mr. Tang acknowledged that.

So with regard to the actual February 27 meeting, I would respectfully submit that Mr. Tang has not been inconsistent on the degree of upset and emotion and anger expressed by the investors.

That’s my recollection, Your Honour, on that issue

THE COURT:  All right. I will include, in addition to the usual admonition, not to consider fear, favour, sympathy or prejudice, but they are to not be swayed by display of emotions which may have arisen in the course of the case for the prosecution or that of the defence.

Mr. BOUSHY: Right. Fair  enough, Your honour. I am just requesting Your Honour that specific, those specific instances where emotion was expressed, for example, when Mr. Tang was crying, that those specific instances…

THE COURT:  how about the witness who cried because she had contracted cancer?

MR. BOUSHY: perhaps, yes, sir, Yes. I think it’s beneficial with respect to this issue if Your Honour could provide specific instances where in the course of the trial they so viewed this type of emotion for which this particular aspect of the charge speaks.

THE COURT: you don’t think it would just draw a greater attention to the emotion that occurred at that time?

MR. BOUSHY: It’s interesting. My friend and I actually discussed that. But I think at the end of the day, your honour, if I don’t request this – I think it’s incumbent upon me as amicus, to so request it so that if this matter were ever to be appealed it can never be argued that amicus did not draw his attention to this issue.

THE COURT: Mr. Gattrell, do you wish to address these particular matters as we go along or save any submissions you may have until after Mr. Boughy?

MR. Gattrell: I am happy to do is issue by issue as long at it doesn’t interrupt the flow of what my friend is saying .

THE COURT: Aall right. While  we are dealing with this issue, do you have any comment?

MR. GATTRELL : I agree that the instruction about sympathy and prejudice having no role in the jurors deliberations, it ‘s a standard one and should he here, and I further agree that given some of the displays of emotion that the jury would have seen during the course of the

Trial, a further comment that they are not to be swayed by displays of emotion is appropriate. I tend to agree with Your Honour’s point that in giving an instruction it’s not actually helpful to them to start going through the evidence and pointing at specific areas that they are not to be swayed by. I think, as you indicated, it simply just highlights things such as, some thinking against about perhaps the fact that a particular witness has cancer and that type of thing, I am not sure that’s helpful. So I agree with all that.

The one thing I would distinguish just as a matter of evidence, circumstantial evidence from which a jury potential could drawn an inference as a trier of fact, is the reaction of people on February 27, that yes, do not be swayed by their emotions, or Mr. Tang’s emotions for that matter, but the fact, the very fact of them all being so shocked, is a piece of circumstantial evidence from which it could potential draw the inference that these people really did not understand what those account statements … they didn’t see those account Statements in the way that Mr. Tang is explaining them at trial, that they were truly shocked by the fact that their account statements have been telling them they had money. They believed they had money. They believed they had money.

THE COURT: certainly, the one utterance after Mr. Tang said there was only fourteen hundred dollars in the account, somebody chimed in, “ Aren’t you missing a few zeros?”

Mr. GATTRELL: RIGHT,  exactly. So to that extend I think it’s a piece of circumstantial evidence, which is a separate issue from being swayed by emotion. I just want to kind of parcel that out or  pull that out so they get swept away together. But that’s the only other comment on those issues so far.

THE COURT: okay, thank you.

MR. BOUGSHY: yes, Your Honour. Just on that point. It’s understanding, your Honour, that that video from February 27, is relevance for the truth of its  contents as it concerns the inculpatory statements by Mr. Tang, and that all the comments, notwithstanding the whole prejudice concerning the emotion with respect to it, but that all the words and comments made,

Spoken and made by the investors, technically are not to be taken for the truth of its contents, but rather, just to help them assess the statements by Mr. Tang. So I think it’s important that the jurors understand that anything said by the investors on that video, because they are not subject to cross- examination and it’s not, for example, cannot be taken for the actual truth of their contents. For example, Your Honour, let’s say this was a situation of prior consistent statements can be taken for their truth if it’s in response to the res gestae, for example. But if it’s for the narrative, or if it is to rebut an allegation of recent fabrication, those prior consistent statements are not to be taken for the truth, but to help the jurors understand the matter or help the jurors understand the matter or help the jurors in terms of assessing this allegation of recent fabrications.

So similarly, I think, relatively strongly worded charge on this issue is in order. So for example, when an investor yells out to Mr. Tang,

“ these are false reports”, technically that statement, because it did not come by way of viva voce evidence from the stand from that witness, is not technically evidence for the truth of its contents, but rather, can only be assessed, or should only be assessed by the jurors in terms of assessing his inculpatory statement. That’s understanding.

THE COURT: the jurors can also assess the emotions and they can do that, because they have the visual as well as the video. That’s something is for the jury to weigh, it has nothing to do with the actual content of the statement. If they hear somebody yelling at Mr. Tang, yes they can assess on their own as to whether that was yelled out in anger or kinship.

MR. BOUSHY: Yes, I agree with that, Your Honour. But in terms of the actual words  spoken, I think technically the jurors should not use those words spoken for the actual truth of their contents because the point of this video was to introduce these inculpatory statements by Mr. Tang, for which there are many on the video, and I think all the comments, in terms of the words spoken can only be taken into Consideration in terms of assessing those inculpatory statements.

THE COURT: I don’t agree with you. Thank you,

MR. BOUSHY: Taking them into account in terms of the atmosphere that was extent at the time Mr. Tang made either inculpatory or exculpatory utterances.

MR. GATTRELL: I think as I see it on the most basic terms, and this I think supports to some extent what Mr. Boushy is taking.

I think if somebody says, for example, “ You are a swindler”, that’s not evidence that he is, that Mr. Tang is a swindler. I think that’s the point my friend is making, but it doesn’t mean that it’s not relevant evidence add to that the jury can take into account. It’s just what use they make of it. So  ithink Mr. Boushy said, it’s part of the conversation that’s going on and they need to know the content in which Tang is reacting and saying things, so it’s relevant to assessing what Mr. Tang says to these gathered crowd. Or using the other example, these are false reports, that comment in it of itself is not evidence that the account reports were false, but it’s relevant as part of the conversation that Tang was involved in and in assessing his responses to what is being said. And I suggest it’s relevant for a second purpose, and this is hearsay issue, that if a person says these are false reports, it’s evidence of the belief of that person at the time the person is making that utterance and it’s relevance in our case because it goes directly to the issue of whether the investors knew that these were false account statements or true account statements or whether the investors knew that these false account statements or true account statement, or whether – maybe I should put it a different way – if they knew the true nature of the account statements , which Mr. Tang has said these were mere promises, they weren’t rally telling anybody anything about true performance. The fact that investors are saying things like these , “ why are the number fake”, or “ these are false reports”, it goes to a key issue in the trial which shows that the people making those utterances, it’s evidence from which a jury could find that they obviously

Didn’t know until that moment the true nature of the account statements. So I think those are the two areas where I suggest there is relevance; they can’t simply take the assertion that it was false and use that assertion itself as evidence that they  were false. I think those are sort of the lines as I see it, what’ not and the reasons why.

THECOURT: Okay, Thank you.

MR. BOUSHY: SECOND POINT, Your honour. The court heard – and Your Honour pointed this out early in the trial – that he was facing a maximum of five years breach of the OSC counts for a total of sixty years and how punishment is not to be considered.

So I would respectfully submit that when speaking in your charge of the irrelevance of punishment, that Your Honour not only speak to actually the criminal charge that he’s facing, but that follow through with the logic that the five year maximum that he’s facing for the OSC charges that they heard, is also, I would think, technically speaking, irrelevance to the decision that they have to make. So I think it’s the Irrelevance of the current charge for certain and also the irrelevance of the punishment pursuant to the OSC charges. And the reason I say that, Your Honour, is because if the punishment of the fraud charge is irrelevant, then I think you don’t want them the jurors to think, well 0 I think if you are going to tell the jurors that the fraud charges are irrelevant, I think you have to also point out, to be consistent here, that the punishment on the OSC charges is irrelevant. I think there would be some type of temptation for the jurors to think, “well, His Honour is telling us the fraud charge is irrelevant , but we know the OSC charges has maximum of five years, I am wondering if the fraud charge has more than five years.” So I think if you point out strongly the OSC punishment and the current punishment is irrelevant, I think that would work a long way towards the jurors actually following Your Honour’s instruction on this whole notion of the punishment irrelevance.

MR. GATTRELL: I think there is a standard part of the jury charge that tells them that the fact that somebody is charged is not something from which they can draw any kind of inference.

THE COURT: Relating to the offence before the court.

MR. GATTRELL: Pardon me?

THE COURT: Relating to the offence before the court.

MR.GATTRELL: of course. It seems to me the same instruction would apply to other charges in another form. The fact if a charge is something from which they can draw no particular inference one way or the other.

THE COURT:  I can’t see how it would hurt to, and maybe appropriate to make reference to the evidence that came ou as a result of the cross-examination of Mr. Thompson – well they are aware of it because of that evidence, they are to disregard it.

MR. BOUSHY: the other point on this whole evidence of good character, Your Honour. I mean, in terms of trials, we have heard a whole lot of evidence on good character and I think it’s Mr. Tang’s position that, you know, his love for the community and his caring for the community, which I gather are character traits, good positive character traits, are evidence by

These events that he sponsored, both all three New  Years events, 2007, 2008 and 2009, they saw video on it along with this march, this pro-Chinese march on April 13. I will leave it to your Honour as to other evidence of good character that he pointed out. I mean, he repeated often times that he’s honest and trustworthy and all that.

THE COURT: Normally that would come from character witnesses as opposed from a person who is accused.

MR. BOUSHY: Normally, but accused person can, as I indicated to Your Honour about a week or two ago, accused persons can technically speak to specific instances of good character.

THE COURT:  Oh yes,  he ‘s certainly has spoken to incidences.

MR BOUSHY: Yes, but I understand the commentary is normally by character witnesses.

So in light of the preponderance of character evidence, I would respectfully submit that 5022, evidence of good Character in Watts Manual Criminal Jury Instruction, is helpful, but I think here has to be, there is another criminal Jury instruction book from the British Columbia continuing legal Education Society, that I think is very helpful on this and in terms of when Mr. Gattrell was cross-examining Tang on specific instance of bad character, the lawsuits, for example, the non-compliance with his own partnership agreement, and there was a litany of instance and I respectfully submit, Your Honour, that in addressing this good character issue, both specific instances of good character and bad character be outlined for the jurors or perhaps most of them, but I think it’s very important, Your Honour, to not only follow the first three paragraphs and final point two in Watts, but then, address this whole issue of when his good character is attacked by Mr. Gattrell. And in Charge 4, 04-32 of the Criminal Instruction book, the one from B.C., it succinctly, it has a particular example entitled , “ additional use of bad character evidence when the accused testifies.” Watt’s book doesn’t have that specifically. Watt’s book speaks of bad character that comes out when the Crown cross-examines the character witnesses. Or when the Crown has called contrary character witnesses, but it  seems like the CCJI specifically speaks to when the Crown is cross-examining the accused and I will just read here, Your Honour.

“ You heard evidence from the accused on cross-examination that the accused has involved in …”

I would ask Your Honour to describe the litany of bad character instances, and this is obviously after describing a litany of good character instances previous to this.

THE COURT: I am sorry. You mentioned earlier in your submission, the lawsuits arising out of this circumstance.

MR. BOUSHY: Yes.

THE COURT: As well as non-compliance with the agreement. Are those aspects of bad character as opposed to the Crown having cross-examined on the involvement with Gorinsen and the IDA? I thought really the attack on character aside from his credibility as a witness is attack from these other areas that the bad character was lying about being employed by Gorisnen as Contained in his biography.

MR. BOUSHY: the point well-taken, the point very well taken, Your honour. I think the lawsuits are important in terms of Tang asserting that he is loved by his investors, and the lawsuits speak against that, so query whether that actually speaks to bad character or not, if your Honour thinks otherwise, that’s fine.

THE COURT: IN TERMS OF HOW IT ARISES out of the circumstances that’s the foundation of other charge before the court.

MR. BOUSHY: in terms of the non-compliance, Tang asserted many times that he was honest and trustworthy, but it seems that his non-attention to the partnership agreement might speak against that, in which case it might touch, at least tangentially on a character trait. But I think Your Honour’s point is well taken about the Gorisen Incident and the specific acts of alleged disreputable conduct made issue by my friend.

THE COURT:  just on that incident as well, I think it would be incumbent on me to ensure that the jury does not take anything from that with respect to Mr. Tang’s wife and her bad conduct to suggest that because of her bad conduct, that can be used against Mr. Tang.

MR. BOUSHY; yes, that’s one point Your honour. But just to get back to the good character. After your honour lists the specific examples of disreputable conduct   that were brought to his attention by Mr. Gattrell, I would strongly urge You Honour simply adopting the words in paragraph 6 of this 04-32 charge in the CCJI, and that is where you point out to the jurors after explaining the litany of, or the examples of acts of disreputable conduct, saying to the jurors:

“ you are entitled to take that evidence into account, not only  in deciding whether or not Tang has the character traits in issues, for example a good trader, an honest trader, trustworthy, caring for the community, etcetera, or investors, etcetera”

So it can be taken into consideration of that, but also they are allowed to take that into consideration when the credibility of Tang, Mr. Tang. However – and  I think this is important, and this is the general charge in terms of general bad character –however it goes on:

You the jurors may not use the evidence of Mr. Tang’s bad character – if they so conclude its bad character – to conclude that he is a bad person and more likely to have committed the offence charged in the indictment.

I think that’s very important with regard to the attacks on his character by Mr. Gattrell and for Your Honour to specify that aspect of the charge in relation to those attacks. I think that’s very important, Your Honour.

And it goes on:

The only purpose of the evidence is its relationship to the accused’s credibility.

I would strongly stress that, Your Honour, in light of the consequences to Tang as the accused  person.

And that’s basically it from my perspective Your Honour.

Mr. Gattrell: let me just give my thoughts on the last point and then I have one further thing that will raise with the court and then Mr. Boushy may want to talk about the further point that I want to raise.

With respect to the character, I think with respect, my friend is mischaracterizing the nature of the cross-examination, I don’t see any litany of attack on character or any litany of bad character evidence whatsoever. I think I indicated earlier in the trial that it was not my intention to go after character at large and I don’t think I did it. I attempted to keep the cross focussed on evidence that either went to the commission of the offence. This is a fraud charge after all, so evidence about dishonesty, deceive, falsehoods and those types of things arise obviously in the facts that the actual allegations that go to the fraud. The evidence that gose to the commission of the offence

Doesn’t offend any rule against bad character or is not even characterized as bad character evidence. So for example, the partnership agreement, that’s agreement that Mr. Tang in –chief said was a very important document. He pointed out the clauses that deal with risk and warned the investors should have been alive to the risk. So for me to cross-examine him on that and then discover that he didn’t pay attention to his own agreement, that’s not an issue of bad character, that’s an issue that goes directly to  how he dealt with his investors, the very ones that the crown alleges were defrauded by him, it goes to his honesty and integrity, not generally, but with respect to these investors in his dealings with those investors. So it may go to credibility, it may go to the very offence as far as promises and inducement to investors that he did not honour, but I don’t see how it raises the issue of character and the way that it’s normally understood. It’s not like I was leading evidence that he has reputation in the community for not honouring his agreements or  not following clauses in contracts.

THECOURT: You do bring up some other lawsuits over a contract where he is found to have been non-compliance with obligations.

MR. GATTRELL: can you remind me of which?

THE COURT: I said you were not, he did not.

MR. GATTRELL: exactly. And the Gorisen thing, I suggest, it just goes straight to credibility, because these are things he raised himself. He made a point of filing that book with the jury, a copy for each juror. Going through his book talking about being a partner at Gorisen and to find out that there was  quite a different history of how things unfolded. That went to his credibility with respect to things that he said in-chief  when he was trying to build himself up as somebody with history of being a skilled trader and a good business man. so I don’t see character of being engaged, notwithstanding that Mr. Tang spent a lot of time in =-chief talking about all the things he has done. Even that evidence , much of it went  to  not character in the way it’s usually led in some cases by defence, which is character evidence that shows honesty and integrity as perceived by people in the community. It really seem to show that he was a person who was very high profile in the Chinese community in theTorontoarea, which I suppose Mr. Tang, he is going to argue, or he may want to argue, “having built up such a high profile why would I possibly put that in jeopardy by deceiving all these people?” I am not sure that’s a character issue in the way we think of it. And it’s evidence that, you know, the Crown may argue that this was not of the things that induced people to invest with him.

Again, to me it doesn’t seem to engage good character or bad character  in the way we know it when you think of it.

Those are my comments on that issue.

THE COURT: Your suggestion is that character is not enough? That jury does not need to be cautioned about …

MR. GATTRELL: No,  I think a standard caution, to the extent that it has been engaged a standard caution is sufficient.

It calls for any kind of special or extended foray in the issue of character. To the extent that the jury –If  my friend is suggesting – that it needs to be told about bad character attacks on the accused in cross, my position is it’s not an accurate representation of what happened in cross.

THE COURT: I AM SORRY, I AM HAVING SOME DIFFERENT  HERE, because as I understood  it , you provided the settlement and the consequences of the IDA process to Mr. Tang through Mr. Boushy prior to closing in chief because you indicated you were going to cross-examine on it.

MR. GATTRELL:  yes.

THE COURT: Right. And so as a result of that Mr. Boushy having said, well Mr. Tang has put his character in issue in spades, we are going to deal with it in chief .

MR. GATTRELL: because my position – I think I said this at the time when I think we had the jury go out and Mr. boushy asked to address it and said the Crown has given this to me, he wants to cross on it, I may want to do it in –chief; Mr. boushy put in terms of character. I think when I got up and responded to Mr. Boushy, as I recall, I think  I took the position  didn’t need to go into character as a basis to cross on that, that although Mr. Boushy was saying I could do it on the basis of character, I wasn’t seeking necessarily to do it on that basis. In my position, it was and still is and given the evidence  in chief it goes directly to credibility, it’s something that contradicts or potentially to contradict what Mr. Tang had represented in-chief about himself.

THE COURT: AS indicated in the charge section of  Cringe, that’s the only purpose for which the jury can make use are it. Okay.

MR. GATTRELL:  sure .  so the further point I want to raise  - and I only brought one copy of each case, and I will hand them up to Your honour in a moment – and I gave these to Mr. Boushy at the outset of the trial.

The concern of the Crown is, if Mr. Tang is going the jury with a defence, “ Basically I never intended to defraud these people “, in my submission, that is not defence in law, just to say I never intended to defraud these people . The law in Canada … the Criminal Code … is interpreted and explain by the Supreme Court of Canada, it indicates clearly that even where an accused person has a belief that he’s being honest if objectively viewed by members of the community as to normal practices that’s dishonest, the accused’ s assertion or belief that what he was doing was honest, is not a defence.

Furthermore, where an accused puts money of investors at risk and intentionally runs that risk the belief or the assertion of an accused that he didn’t think the risk would actually materialize , is not a defence. So that point is very important to the Crown when we see or we anticipate that what Mr. Tang’s defence seems to be is that, “ I did not feel like I was doing anything wrong”, or on some kind of higher moral level, “ I ultimately had the best intentions of the investors at heart because one day down the road I would have made all good ’ 

the concern  the Crown has is that it be very clear to the jury that that’s not legally correct if that is the position that’s going to  be put. And there are two cases that are relied on, are the Pane (ph) cases, they were released at the same time by the supreme Court ofCanadain 1993.

In Seruse (ph) specific paragraph 27, very nicely the court break down what the actus reas of raud is and then it also break down what the mens rea of fraud is and then at paragraph  28 the majority of the court – this is in Seruse (ph) – indicates:

Where the conduct is not required by these  definitions are established the accused is guilty whether  he actually he intended the prohibited consequence or his recklessness as to whether it would occur.

And there are further relevant comments about these cases  . those two paragraphs are sort of very useful as a quick reference. I printed them off; I can provide them to Your Honour if you would like.

Slatex (ph), is , I suggest very apt In the

Sense, here you have somebody who had money from other persons and without their knowledge used it for something entirely unrelated to the purpose for which he had the money. He actually been gambling with the money thinking that he would win money gambling and then everybody would be happy and, of course, it didn’t work out for him, and the fact that Mr. Slatex (ph)  may have believed he would win from gambling the money back  and perhaps even share the profits with the people who had given him the money, was not a defence. So those are something that I am raising because that’s an important issue from the Crown ‘s perspective.

So that’s the only comment I had in addition to what Mr. boushy has mentioned.

MR. BOUGHY: Your Honour, my friend is, with respect, inadvertently mistaken when he indicates to this court that the intentions of the fraud is not an essential ingredient of the offence; it certainly is.

THE COURT: HE IS NOT SAYING IT IS NOT AN ESSENTIAL element. Clearly it’s one half of the two principle elements, the actus and the mens rea. For Mr. Tang to assert that he did not intend to defraud is in it of itself not a defence. And I agree to the extent, to an extent, certainly it’s a subjective evaluation on the part of the jury with respect to intent. So they look to what the accused believes, but they may also look to whether it was said in recklessness to disregarding the debt probation that his acts were causing or possibly causing. So it has to be taken into context.

MR. BOUSHY: Yes, Your Honour. I know in the Cringe (ph) charge they speak of the wilful blindness or the recklessness aspect of the knowledge requirement and it certainly narrowly defined as evidence at apge 65 of Watt. But, Your Honour, in terms of Watt, this is the third essential ingredient to prove this essential element. And Watt incorporates the role. “Crown Counsel must satisfy you beyond a reasonable double that the accused meant to sayor do those things that amount to deceive falsehood  or other fraudulent means” – this is assuming they find the deceit in the previous essential agreement – “ and knew” – this is where

the defence is going to be … his defence is going to be focused on in terms of this – “ and knew” – in other words the crown has to prove beyond a reasonable doubt that Tang knew that saying or doing that – in other words these promises or targets or this false reporting could put at risk the economic financial interest of the complainant.

Now my friend is quite right, and Watt incorporate this. “ it  does not matter whether the accused thought what he or she was saying or doing was not dishonest or thought that neither the complainant nor anyone else would suffer harm in the end result. “ but certainly, there is an intent requirement.

MR. GATTRELL: what did I indicate?

MR. BOUSHY: I THOUHGT YOU INDICATED that intent need not be proven by the crown.

The court: Mr. Gattrell said that intent is not a defence, saying I did not intend to defraud, in it of itself is not defence.

MR. BOUSHY: FAIR ENOUGH; I MISCONSTRUED THAT. ON THAT ISSUE, It’s my- is it Your Honour’s practice to provide a decision tree?

THE COURT: yes.

MR. BOUSHY: okay, because when I address the jurors, your honour – assuming your Honour is not going to allow both of us to address the jurors, which is in keeping with how Your Honour ruled at the opening. When I address the jurors, Your Honour, it’s my  intent at this stage to actually put this decision tree on the Elmo, because I wanr to go through the essential ingredients for them. I was going to use Watt’s decision tree. I don’t know if that’s going to pose problems for Your Honour? I could always say – I don’t know – is it your Honour intention to provide a decision tree to the jurors or to just announce the essential ingredients?

THE COURT:  No, to provide a decision tree so they can work through it

MR. BOUSHY: Okay. Fair enough.

THE COURT: BUT IT’S NOT FORM, IT’S TAILLORED TO Mr. Tang

MR. BOUSHY: Okay. I was just going to provide a precedent decision tree, I wasn’t going to tailor it to, I was going to put this on the Elmo and

THE COURT: That’s fine. You can indicate you anticipate that they will received a decision tree from His honour and you work through that.

MR. BOUSHY: ALL RIGHT. IN LIGHT OF MY CONCERN AGAIN, ON HOW THE JURY SHOULD BE CHARGED WITH REGARD TO HOW THEY SHOULD TAKE THE INVESTORS COMMENTS IN THE CONSIDERATION, I RESPECTFULLY SUBMIT THAT MY…

THE COURT: which investors? The witnesses?

MR. BOUSHY: NO, ON THE February 27 video. That’s a big concern, Your Honour, from I think from Mr. Tang’s point of view, because of the potential prejudice that could arise from that. But Your honour, I would respectfully submit that my submit that my initial comments to you as to how Your Honour should tailor the charge to the jury as to how they should take the comments that they hear on the video, is bolstered by final 33A of Watt. If I could just read that to you Your Honour. It’s final 33A of Watt’s manual Criminal jury instructions at paragraph 6. and justice watt writes:

In listening to these tapes be careful to distinguish between the accused says

And what anyone else on the tape is saying.

Then he highlights two points , your Honour;

(a)  what another person says may help you figure out what the accused says and what his word means, but the accused can be held responsible only for what he actually says, not what anyone else says.

Which is sort of what I was sort of trying to get at Your Honour. And then two:

What another person says may provide a context for understanding what the accused says, but only the accused ‘s words as understood in this context or evidence what the accused has done or intend to do.

I would you ask, with respect, Your Honour, to adopt that paragraph 6 in the final 33 A as it concerns this February 27 video for which the jurors not only have the video, but also the transcript.

THE COURT: Okay.

MR. BOUSHY : thank you, sir. And we have got a summary here for Your Honour.

THE COURT: Thank you. Before dealing with that, I just want ..

MR. GATTRELL:  I thought of one further point.

THE COURT: WITH respect to the decision tree and justice Watt makes reference to principally four essential elements.

The first one deals with the value of the property or whatever. In this case it’s clearly money. So what I want to do is to sort of narrow the concentration of the jury in terms of the issues that they need to concern themselves with. So the first one is the value of the property, and in this instance it’s money, I think they have little difficulty in assessing that investors gave money by way of cheques or money orders to the Overseas Chinese Fund controlled by Mr. Tang through Weizhen Tang and Associates, and that that was the property or the loss. In fact, s. 387 (1) speaks of money so that’s the first element.

Then the second, of course , is with respect to the deceit or falsehood or other fraudulent means. That’s the actus aspect of the offence to commit fraud. So that’s one that the jury has to focus on.

The third is the intent, the question of intent, did Mr. Tang intend to defraud. I will follow generally that format as set out by Justice Watt with some additional references as contained in  Flaret (ph) and Terow (ph).

The Fourth element deals with fraud over five thousand dollars, which is the charge. Now there is as well noted in the decision tree, fraud under in terms of the value of proven. Again, much like the first element as to what was the property deprived of –it’s specifically money as referred into s. 380 – is there any need to complicate the matter by having them assess the value of deprivation.

MR. BOUSHY:  Absolutely not, your Honour. The point is well taken. It’s basically to – I think that those four essential ingredients can be … that the jurors can focus on, just those two, because clearly, I think it’s conceded by Mr. Tang that the investors were deprived of money, and that’s clear, and I think that is common sense and also it can be concede by Mr. Tang that the value of the property was more than five thousand dollars. So I think, just to focus the jurors on those two essential ingredients, the actus rea and the mens reas is sufficient. I think that’s actually obvious, with respect, Your Honour.

THE COURT: THOSE IN THE DECISION TREE THAT I WILL GIVE TO THEM. BECAUSE I WILL MAKE REFERENCE TO THE FOUR ELEMENTS THAT THE CROWN has to prove beyond a reasonable doubt, those elements that are conceded by Mr. Tang will be included offence of fraud under.

MR. GATTRELL: I have a further point that occurred to me.  I will raise it . I don’t know –well  I will raise it.

It occurred to me that in Mr. Tang’s evidence, particularly in cross, it could be interpreted in a sense, that he has actually admitted in cross, of having committed the offences, having deceived the people and putting their … of  having lied – he wouldn’t adopt the word lie, but he agreed. For example, at the second summit when he says the money was in Government bonds, that was not true, it was never true. And that he was deceiving the people, so that people wouldn’t withdraw their money from the fund. So my concern is the WD formula, the standard WD formula that’s almost always used by courts, tell jurors, if you believe the accused you must acquit. What if you believe the accused or he’s admitting to the offence? I know it sound  far fetched, but I actually had a case where that happened where the accused admitted to the offence, and then the judge say, if you believe the accused you must acquit, and the jury acquitted.

So I am wondering if it needs – and I know the courts more recently told us there is no magic formula, WD doesn’t need to be slavishly followed word by word – if it would may sense to say, if you believe the accused with respect to something that constitute the defence in law, as opposed if you believe him when he is admitting to having committed the offence. It’s something

that occurred to me , I thought I would raise it with Your Honour for your consideration. I know the  courts have said WD can be adopted, in fact, should be adopted to the circumstance of the case before the court.

MR. BOUSHY: I have always thought WD is far ore applicable on he said she said cases. I don’t know how applicable or – I don’t know how much focus should be put on WD in a case like this.

THE COURT:  well certainly I would tell the jury that if they believe Mr. Tang and they accept his evidence, that they must acquit.

MR. BOUSHY: but I think my friend’s point is well taken. And it points beside of Watt in a footnote, that’s where the evidence actually constitute a defence to the offence charged, so if Your Honour wishes to add that point on, that’s perfect, that would be appropriate. I think my friend’s point is actually well-taken, Your Honour, in terms of my friend’s perception that Mr. Tang might very well have admitted to, for example, the deceive component of the essential ingredient, particularly in terms of that line of cross that was made yesterday, Your Honour, the ninety-nine percent government   bonds, when Mr. Tang openly admitted that he did not follow – he did not adopt the word “deceit”, but I think in light of my friend’s comments, which I respectfully submit are apropos, that in light of that first paragraph on WD, I think it would be, with respect , incumbent upon Your Honour to indicate that only what he’s saying would constitute a defence of the defence charged. Because I know my friend just highlighted one of the big issues there . so for example, if they believe him about not deceiving the jurors, if they believe him that he has no intent, then they must acquit. But I think my friend’s point, with respect Your Honour, is well taken. Not to overly compliment my friend, but I think his point is well taken on this point.

THE COURT: ONE OF THE OTHER ASPECTS THAT CAME UP IN EVIDENCE VERY FREQUENTLY, WAS Mr. Tang’s evidence that there is a group of investors that constituted a majority that wanted him to continue trading, and I think he put it into context of how they liked what I was doing and they wanted me to continue it”, and then even subsequently and after being charged, not to have the cease trade order lifted by a motion. I do intend to tell the jury consistent with Terrow (ph) that it’s no defence to the charge of fraud for the accused to say he didn’t intend to cause a loss or he believed that his actions would be subsequently ratified, so that that evidence about investors wanting to have and continue trading does not constitute ratification or defence of no intent .

MR. BOUSHY: That’s fair, Your Honour, and in light of those cases you mentioned it in Watt’s charge.

MR.GATTRELL:  I agree.

THE COURT : All right. Anything else that counsel could think of?

MR. BOUSHY : no, but again, we have the summary ready for Your honour .

THE COURT:  the other area, not having looked at this yet, and I don’t want ot discuss its context at the moment.

Much emphasis was placed on the question of a bias with respect to the investigator and OSC as commented during the course of the trial, bias is not a defence, and although if there is

Evidence upon which the jury could conclude bias on witnesses who disavowed a bias when put to them, it’s open to them to use the assessment of the witness, of the witness’ credibility. But how does that relate to the offence charged aside from the credibility of an investigating witness?

MR. BOUSHY:  when we spoke about this, or made submissions about this last week, I think it’s only relevant towards the credibility of the witnesses that are subject to this accusation of bias and, therefore, the voracity of the reliability of his testimony as it goes to the essential ingredients in whatever may the jurors so assess that credibility. I think it’s only relevant in law for purposes of credibility without question. And I would invite Your Honour to stress  that it’s not an actual defence, and again, perhaps also with regard to the issue of bias, to reiterate this notion of sympathy or the irrelevant of sympathy and prejudice, I think that would be warranted in the circumstance. I think the court should always be concerned as the Morgantali (ph)

Decision that jury verdicts in the seventies point out jury nullification, so I would invite Your Honour to focus on these specific relevance of that bias argument, that’s only going towards credibility.

MR. GATTRELL: I agree with those comments. The only further comments I would like to ask you to consider is where it could only potential go to the credibility of Mr. Thompson and Mr. Deverteuil, and it’s almost incomprehensible to see how in anyway it goes to the credibility of – I am not sure of what it is that Mr. Thompson said that they want, but I think they will be asked to disregard why he collected these bank records, and he brought the disk to court. And that’s the essence of his evidence. And with Mr. Deverteuil…

THE COURT: well that was just addressing my question in terms of why they may use it to assess the credibility, how does it relate to the charge before the court.

MR. GATTRELL: yes.

THE COURT: THE PUBLIC OR THE MEMBER OF THE PUBLIC, THE INVESTORS HAVE TESTIFIED. THAT’S REALY THE FOUNDATION OF THE Crown’s case, not the  investigation conducted by Mr. Thompson.

MR. GATTRELL: I completely agree. And I was about to say, or what Mr. Deverteuil had to say about the bank accounts. So the only comment I want to add to what Mr. Boushy had to say, was I am suggesting that there is no air of reality to it. I know we usually say in terms of something of defence, if there is no air of reality the defence is not put. This isn’t even defence, but if there is no air of reality to it, even though it could theoretically be used for credibility, should the jury even be told that it’s something they could use for credibility when there is no air of reality or should they just be told there is no air of reality for this, don’t even waste your time, don’t even trouble yourselves using this as a basis to try to assess the credibility.

That’s my additional comment.

THE COURT: WELL I GUESS the extent to which the jury assess his credibility, they could use it, I don’t know it add to link it to an end.

MR.BOUSHY: Your Honour, because bias is not a defence, strictly speaking there is  no air of reality condition precedent. If it  was a defence there would have to be an air of reality, but it’s not a defence, it only goes towards the OSC witness’ credibility. So in law, I would respectfully submit there need not be a gate-keeper function here by the trial judge with regard to this air of reality notion because I don’t think that…

THE COURT: I AM NOT GOING TO RAISE THE ISSUE OF AIR OF REALITY.

.MR. GATTREL:  I am not suggesting you speak to the jury in terms of air of reality. That’s my characterization, that there is no air of reality in it. It wouldn’t be a gate-keeper function because  I also, in a sense, that the idea that the jury are the triers of fact and so credibility issues are not something just lightly to betaken away from the jury. It’s reality- I know judge used to do it more than they do it now, and they don’t do it that much – but the judge does have the right to comment on the evidence. That’s really where my submission was going. Because in my submissions, no air of reality, it may be something where Your Honour might feel this is a situation where it would merit the comment from the judge as to the judge’s view of the cogency of that evidence on the issue of credibility which would ultimately still be put to the jury.

THE COURT: Okay .

MR. BOUSHY: also, I think Mr. Tang might wish to address the court, Your Honour.

THECOURT: Yes, Mr. Tang

The accused: actually just thank you for your effort. I just want to know that new losing money is not a crime.

THE COURT; SORRY, I didn’t HEAR YOU.

THE ACCUSED: in losing money, manage money and when money lost. All the investors want somebody who manage their money wish to get punished. The whole capitalist, the whole world in the financial tsunami, everybody is losing money. So lot of people, like US want for everybody working in Wall Street to end up in jail because they are mad. That’s one thing.

The second thing is the Crown told Your honour saying because my account statement keep investors invest with me. The second thing, the money is safe in bond, like you know, like government bond give them investing. Actually the fact is over the three years there is massive massive withdrawals from account Oversea ( Chinese Fund ) because financial tsunami affect, massive withdrawals. So, you know, there are lots of  cases, losing moneyis not a crime. I gave all my money to the investors.

THE COURT: YES, Mr. Tang, thank you.

On the question of closing addresses. Mr. Tang, the crown and defence in any criminal trial that’s conducted with a jury has the opportunity to make a closing argument, closing submissions to the jury. I know that you wish to speak to the jury again, but if you have Mr. Boushy speak on your behalf to the jury, it would be in effect, giving the defence two opportunities to make closing argument to the jury. So the choice is yours, Mr. Tang. The defence has an opportunity to make closing submissions to the jury in terms of what they should consider and what verdict they should reach, but it will only be one. If it’s you, it wil be you. All right, Sir? It won’t be both.

THE ACCUSED: Your Honour, I understand. I wish I could, but that’s your choice, your decision.

THE COURT: I understand, sir. You have testified, you have had, of course, your right to testify and give your defence. The closing address is an opportunity for the defence to speak to the issues that the jury has to consider and the evidence they may consider in seeing those issues in terms of coming to a verdict based on the charge before the court. You would be probably better advised to allow Mr. Boushy to do that for you because he knows what the issues are and he knows what the evidence is and he is a skilled advocate, and he is able to put before the jury your defence in a way that the jury will be able to properly consider it.

All right, sir?

THE ACCUSED: YES.

THE COURT Okay.

MR. GATTRELL: You would like us to send you a summary this afternoon, I think?

THE COURT: What I will do is, through Madam Registrar, will give you my email address and you can forward it on to me over the weekend.

Now the other matter, defence was called so Mr Boushy you  will be prepared to make your closing argument on Monday morning?

Mr. Boushy : yes, sir. I have a question on that, your Honour. If I would like to say, couple hours, an hour and a half, and my friend about an hour and half or so, is it still Your honour ‘s intention to charge the jury on Monday?

THE COURT: If the parties complete their submissions in the morning, then I should be able to complete my charge to the jury by the usual afternoon break. If it appears to be going longer and the afternoon is shortening, what I may do is split the instructions so that I will give the majority of my instructions and then put them over to first thing in the morning on Tuesday and finalize my instructions.

Nothing else ? all right.

ADJOURNMENT

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