



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Samardzich,









2004 BCCA
            31




Date: 20040116





Docket: CA031335

Between:

Regina

Respondent



And

Michael
      Anthony Samardzich

Appellant














Before:



The Honourable
            Chief Justice Finch





The Honourable
            Madam Justice Prowse





The Honourable
            Madam Justice Ryan




Oral Reasons for Judgment




P.M. Kendall



Counsel for the Appellant





P. Dohm



Counsel for the (Crown) Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia









January 14, 2004





Place and
            Date:



Vancouver, British Columbia





January 16, 2004







[1]

RYAN,
          J.A.
: This is an application under s. 680 of
          the
Criminal Code
for a review of the applicants order
          of detention made by Madam Justice Loo on 2 October 2003 pending his
        trial on two counts of first degree murder.

[2]

The
        applicant stands charged with two others for the first degree murders
      of Eugene and Michelle Uyeyama.  The murders took place on 21 December 1995
        in Burnaby.  A jury will be selected in two weeks time.  The trial will
      take place in March of this year.

[3]

The
        murders of the Uyeyamas remained unsolved until October 2002 when Robert
        Moyes, a long time violent criminal, pleaded guilty to those murders
      and the murders of five others in a separate incident.  Moyes admitted that
        he was hired to kill the Uyeyamas.  He told police that he was hired to
        kill them by a man named Ciancio because Ciancio and some of his criminal
        confederates believed Eugene Uyeyama to be a police informant.  He also
        told police that the applicant was conscripted by Ciancio to assist him
      to commit the murders.

[4]

The
        case for the Crown and the weaknesses in it as it stood in October of
      last year were fully set out by Judge Loo in the reasons she provided for
      making
        the order for detention.  As she said at the beginning of her reasons,
        the case for the Crown turns on the evidence of Moyes and an analysis
        of the records and movements of the cellular phones used by the applicant
      and Ciancio around and on the day of murders.

[5]

In
        deciding whether to detain the applicant, the Supreme Court justice found
        that the applicant had satisfied her that his detention was not required
        on the primary or secondary grounds.  She considered that the question
        of release turned on the tertiary ground found in s. 515 (10)(c) of the
Code
,
        specifically, whether the applicant ought to be detained to maintain
        the confidence of the public in the administration of justice.  Judge
      Loo found that a detention order was required.

[6]

In
        deciding whether to apply the tertiary ground, the Supreme Court Justice
        analyzed the strength of the Crowns case.  She concluded that the evidence
        that the Crown would call at trial fairly strongly implicated [Samardzich]
      in a senseless contract killing said to be linked to organized drug trafficking.

[7]

She
      said this at para. 53 of her reasons for judgment:

[53] Having considered the apparent strength of the Crowns case, the
        gravity of the nature of the offence, the circumstances surrounding its
        commission and the potential for life imprisonment, I conclude that Samardzichs
        detention is necessary to maintain the publics confidence in the administration
      of justice.  His application for judicial interim release is dismissed.

[8]

Since
        the order of detention was made counsel for the defence, Mr. Kendall,
      has been able to examine in some detail volumes of disclosure materials
      provided
        to him by the Crown.  He seeks to file further evidence in this Court
        which he says weakens the Crowns case to a greater degree than recognized
        by
      Judge Loo.

[9]

Some
        of the new evidence that the applicant wishes to place before this Court
        addresses facts placed before Judge Loo while other parts constitute new
      evidence relating to the Crown witnesss indiscretions and inconsistencies.

[10]

In
R.
            v. Dempsey
(2001) 153 C.C.C. (3d) 311 Mr. Justice Lambert said
          this about the nature of the review in this Court:

[15] It is said, in quoting
Wu
in
J.W.R.
,
        that the review is in the nature of an appeal on the record and not a hearing
de
        novo.
Also, the reviewing court exercises independent discretion and
        may substitute its own opinion for that of the single judge under review.
        It must base its review on facts found by the single judge's evaluation
        of the evidence. It is not necessary that a reviewing court, before intervening,
        come to a conclusion that the decision of the single judge under review
        was unreasonable or that an error in principle was committed. This is what
      was said in
J.W.R.
:

A
        review under s. 680(1) of the
Criminal Code
is in the nature
        of an appeal on the record and not a hearing
de novo
. While the
        reviewing court exercises an independent discretion and may substitute
        its own opinion for that of the single judge under review, it must base
        its review on facts found by the single judge's evaluation of the evidence.
        It is not necessary that a reviewing court, before intervening, come to
        a conclusion that the decision of the single judge under review was unreasonable
      or that an error in principle was committed.



[16] The review described there
        is different from some other reviews conducted by this court where, as
        the Nova Scotia Court of Appeal said in
Benson
, the standard
        of review on questions fact or on the weighing of evidence, is whether
        the decision below was clearly wrong. I believe that the matter should
        not be regarded as having been fully argued and clearly settled as to what
        the standard of review is under s. 680 of the
Criminal Code
.



[17] Let me say also, that the
        fact that fresh evidence may be introduced does not deprive this court
        of jurisdiction. But the nature of the fresh evidence must have a bearing
        on the nature of the review that the court is being asked to undertake.
        Some fresh evidence might go to the very facts in issue in the evidence
        that was before the judge of first instance who made the first ruling.
        But that is not so in this case. The fresh evidence and all the material
        on which this application is based is material that arose from and within
        the trial that ended in a mistrial. It could, by its vary nature, not have
        been before the Supreme Court judge who heard the initial bail application.



[18] In my opinion, following
        the
Turner
case and the
Daniels
case and the
Patterson
case,
        I would conclude that the review that we are being asked to undertake in
        this case is not a true review as contemplated in s.680. It is instead
        in the nature of a completely new application for interim release based
        on entirely new materials and in circumstances where the original order
        was conceded to have been properly made and correctly made, at the time
        it was made.



[19] In my opinion, s. 680 does
        not confer on this court the jurisdiction to make an order dealing with
        judicial interim release on the basis of the kind of circumstances that
        I have described in this particular case. Accordingly, I would decide that
      we are without jurisdiction.

[11]

While
        the fresh material, in the case at bar, is abundant I am not prepared
      to find that it serves to change the nature of this review.  I would admit
      the fresh evidence.

[12]

Having
        examined the material, I can say that the evidence of Mr. Moyes is obviously
        fraught with difficulty.  The Crown says that he has nothing to gain from
        testifying against the applicant and the other two accused.  He is serving
        a life sentence, mostly in segregation, and will receive a couple of hundred
        dollars he would otherwise earn if he were in a regular institution.  While
        the monetary and physical incentives may seem rather meaningless in this
        case, it is not difficult to conclude that other motives may lie behind
        the willingness of the witness, an admitted sociopath, to concoct a story
        against the applicant.  Counsel for the applicant has pointed us to many
        other inconsistencies in the narrative provided by Moyes of the manner
      in which the killings were planned and executed.

[13]

However,
        the fact remains, as pointed out by Mr. Dohm for the Crown, cell phone
        evidence analyzed by an expert puts the applicant in a mile or two radius
        of the place where he is alleged to have met Moyes the morning of the murders,
        within the same size radius of the murders in Burnaby at approximately
        the time they were said to have been committed, and back near his residence
      in Abbotsford when he was said to be have returned home.

[14]

There
        is further evidence of a series of calls made on the applicants cell
      phone to Ciancio before and after the killings.  Counsel for the applicant says
        that the calls were made because the applicant was attempting to get some
        of his property back that had been left with Ciancio.  He says that there
        were a great number of calls recorded only because his cell phone was
      malfunctioning.

[15]

The
        case against the applicant is not easy to assess at this stage of the
      proceedings.  While
        Mr. Moyes is a witness who must be treated with extreme caution, there
        is some evidence that could be found by a jury to independently corroborate
        what Moyes has to say about the applicants involvement in these murders.  When
        Moyes implicated Samardzich in the murders Moyes could not have known that
      the cell phone evidence existed.  The coincidence is noteworthy.

[16]

The
        strength of the Crowns case is one aspect of the consideration under
      the tertiary ground.  In my view, while the case will be a weaker one than
        the evidence suggested before Judge Loo, its strength, along with the other
        factors discussed by Judge Loo, nonetheless militate for an order of detention.  I
        would confirm the decision of the Supreme Court justice and dismiss the
      review.

[17]

FINCH,
        C.J.B.C.
: I agree.

[18]

PROWSE,
        J.A.
: I agree.

[19]

FINCH,
        C.J.B.C.
: The review application is dismissed.

The Honourable
      Madam Justice Ryan




