



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Essiambre,









2004 BCCA
            47




Date: 20040122





Docket: CA030021

Between:

Regina

Respondent



And

Ronald
      Wayne Essiambre

Appellant














Before:



The Honourable
            Mr. Justice Braidwood





The Honourable
            Madam Justice Levine





The Honourable
            Mr. Justice Smith




Oral Reasons for Judgment




D. Turko



Counsel for the Appellant





C. Deedman



Counsel for the (Crown) Respondent





Place and
            Date:



Vancouver, British Columbia





January 22, 2004







[1]

SMITH,
          J.A.
: The appellant appeals from his conviction
          for breaking and entering entered following a trial before Mr. Justice
        Hutchison and a jury.

[2]

His
        first point is that the trial judge erred in his instruction to the jury
        on the doctrine of recent possession.  I understood counsel during the
        course of submissions to concede that there was no error in the charge
        on recent possession.  In the event that I misunderstood counsels position
        I am satisfied that the trial judge made no error.  He charged on recent
        possession.  He subsequently recharged at the request of defence counsel
        in order to give a more expansive discussion of the appellants explanation
        for the possession and counsel expressed contentment with the re-charge.  Further,
        when the jury asked for clarification of the doctrine of recent possession
        with the agreement of counsel he instructed the jury in accordance with
      the suggested charge in CRIMJI.

[3]

In
      my view, he instructed the jury correctly.

[4]

The
        second ground raised by the appellant is that the trial judge usurped the
        jurys function by telling the jury that the possession was extremely
      recent.

[5]

I
        cannot agree.  First, this was merely an expression of opinion by the trial
        judge, not a finding of fact.  The trial judge made it abundantly clear
        to the jury that questions of fact were for them to decide and that they
        were not to be bound by his opinions or by those of counsel.  Further,
        on the evidence, his characterization of the possession as extremely recent
        was accurate.  Moreover, defence counsel accepted that the possession was
        recent and, indeed, described it as recent in his address to the jury.  Recency
        was simply not a live issue.  The issue for the jury, as the case was presented,
        was whether the appellants explanation raised a reasonable doubt.  Accordingly,
        I am not persuaded that the trial judge erred by usurping the jurys
      function.

[6]

The
        next ground raised by the appellant is that trial judge erred by failing
        to tell the jury that, when considering the accuseds explanation, they
        should also consider questions such as the opportunity for transfer of
        the property to the accused, the ease of transfer of the property and
      such similar questions which relate to whether the explanation might reasonably
      be true.

[7]

The
        accused testified and gave his explanation of how he obtained the property.  This
        was part of his explanation for the possession which the trial judge correctly
        told the jury that they must consider and to determine whether it might
        reasonably be true.  I am not persuaded that he committed any error as
      counsel has alleged.

[8]

Finally,
        the appellant contends that the jurys rejection of his explanation was
        unreasonable.  I see no merit in this submission.  There was an overwhelming
        body of evidence implicating the appellant in the crime, which the jury
        was entitled to accept.  Further, it is obvious that, on considering the
        accuseds explanation, they did not conclude that it might reasonably be
        true.  This conclusion was reached, at least in part, on findings based
        on credibility which are entirely within the province of the jury.  I
      would reject this ground of appeal as well.

[9]

In
      the result, I would dismiss the appeal.

[10]

BRAIDWOOD,
        J.A.
: I agree.

[11]

LEVINE,
        J.A.
: I agree.

The Honourable Mr. Justice Smith


