



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Soomel and Mann,







2006 
          BCCA 17



Date: 20060113





Docket: CA030938

Between:

Regina

Respondent



And

Ravinder 
    Soomel

Appellant



- and -

Docket: CA030956



Between:

Regina

Respondent



And

Gurwinder 
    Singh Mann

Appellant





THERE IS A BAN ON PUBLICATION PURSUANT TO SECTION 486(4.1)

OF THE CRIMINAL CODE




Before:


The 
          Honourable Madam Justice Southin




The 
          Honourable Madam Justice Prowse




The 
          Honourable Mr. Justice Thackray










G.D. 
          McKinnon, Q.C.


Counsel for the Appellant,

Mann




I. 
          Donaldson, Q.C.


Counsel for the Appellant,

Soomel




K. 
          Ker, V. Soon


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




December 13 & 14, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 13, 2006








Written 
          Reasons by
:




The 
          Honourable Madam Justice Prowse




Concurred 
          in by:




The 
          Honourable Madam Justice Southin

The 
          Honourable Mr. Justice Thackray















Reasons for Judgment of the Honourable Madam Justice 
    Prowse:

OVERVIEW

[1]

On May 31, 2003, following a 29 day trial, Mr. Mann and Mr. Soomel 
    were convicted by a jury of first degree murder with respect to the death 
    of Gurpreet Singh Sohi on September 14, 2000.  They are appealing from conviction.

[2]

A third person, U., was originally joined on the indictment with Mr. 
    Mann and Mr. Soomel but was severed before trial.  U. was later tried separately 
    before a judge alone and was convicted of manslaughter on February 20, 2004.

[3]

The Crown theory at trial was that Mr. Soomel (Soomel), Mr. Mann 
    (Mann) and three accomplices, C., G. and U., embarked on a plan to kill 
    Mr. Sohi (Sohi) to avenge the non-fatal shooting of Soomels brother approximately 
    four days earlier, and in retaliation for Sohis alleged involvement in stealing 
    drugs which Soomel and his associates had been attempting to export into Washington 
    State.  The Crown alleged that Soomel was the mastermind behind the killing, 
    Mann was the shooter, U. was the set-up man, and G. and C. were lookouts.

[4]

C., G. and U. were key Crown witnesses.  C. and G. signed immunity 
    agreements with the Crown before testifying.  Their evidence, and that of 
    U., was subjected to rigorous and lengthy cross-examination by defence counsel 
    with a view to demonstrating that it was tainted in numerous ways and so untrustworthy 
    as to be entitled to little, if any, weight.

[5]

Mann testified at trial and admitted to having accidentally shot Sohi 
    during the course of a robbery, but denied that there was any plan to kill 
    him.

[6]

Soomel did not testify or call evidence.  His position at trial was 
    that while he was involved in a robbery of Sohi that went wrong, he was not 
    involved in any plan to murder Sohi and that, at most, he was guilty of manslaughter.

GROUNDS OF APPEAL

[7]

Counsel for Mann submits that the trial judge erred in:

(1) 
    failing to adequately instruct the jury about the dangers of relying upon 
    the tainted evidence of U., C. and G.;



(2) 
    failing to instruct the jury that if they found the evidence of U., C. and 
    G. was tainted by police interrogation techniques and/or by deliberate collusion, 
    or innocent contamination, they could
not
look to other evidence to 
    corroborate their evidence, and they must give their evidence little, if any, 
    weight in their final determination; and in



(3) 
    admitting Manns statements to the police by failing to find that Manns right 
    under s. 10(b) of the
Canadian Charter of Rights and Freedoms
(the Charter) was infringed when the police denied him the right to have 
    his lawyer present during their interrogation of him on October 13, 2000.



[8]

With respect to the third ground of appeal, counsel for Mann acknowledges 
    that the decision of this Court in
R. v. Ekman
(2000), 146 C.C.C. 
    (3d) 346 rejecting a similar argument in analogous circumstances is applicable 
    and binding on this panel.  He asks for a ruling on the issue, however, for 
    the purpose of pursuing an appeal in the event his other arguments are unsuccessful.

[9]

Soomel joins in Manns grounds of appeal and submits that the trial 
    judge also erred in:

(4) failing to sever Soomels case from that of Mann once Manns statements 
    were admitted into evidence, or, alternatively, failing to adequately caution 
    the jury as to the use which could be made of Manns statements.

DISCUSSION OF ISSUES

[10]

The first two issues are inter-related and I will discuss them together.

(1) and (2)
The Charge With Respect to Tainted Evidence



(i)
Submissions of Counsel

[11]

Counsel for the appellants (who were not counsel at trial) submit that 
    the trial judge failed to adequately warn the jury about the dangers of relying 
    on the tainted evidence of C., G. and U..  Counsel submit that this warning 
    should have been in addition to, and separate from, the
Vetrovec
warning given by the trial judge (
R v. Vetrovec
, [1982] 1 S.C.R. 
    811), and should have included specific reference to tainting by police interrogation 
    techniques, deliberate collusion, and innocent contamination.  (In this case, 
    counsel for the appellants describe innocent contamination as a process 
    by which the exposure of one witness to the evidence of other witnesses, through 
    interrogation, suggestion or otherwise, may cause that witness to subconsciously 
    (as opposed to deliberately) modify his/her evidence to accord with the evidence 
    of the other witnesses.)  Counsel also submit that the jury should have been 
    instructed that if they found the evidence of these witnesses was so tainted, 
    they could not look to other evidence to corroborate that evidence, and they 
    should give that evidence little, if any, weight.

[12]

Counsel for Soomel also made what he referred to as a complementary 
    (and what I would term an alternative) submission.  He argued that, if the 
    jury was entitled to look to corroborative evidence with respect to the evidence 
    of these three witnesses despite its inherent unreliability, they should have 
    been instructed to look for evidence corroborating the element of planning 
    and deliberation and not simply for evidence corroborating the witnesses 
    evidence in general.

[13]

Counsel for the appellants acknowledge that counsel for Mann and Soomel 
    at trial did not raise these objections to the charge.  They also acknowledge 
    that there is no direct authority in support of their submission.  Rather, 
    they ask this Court to adopt, by analogy, the analysis with respect to the 
    admissibility of similar fact evidence tainted by collusion in such cases 
    as
R. v. Shearing
, [2002] 3 S.C.R. 33, 2002 SCC 58; and
R 
    v. Handy
, [2002] 2 S.C.R. 908; 2002 SCC 56.  Alternatively they ask 
    this Court to find that the little, if any weight caution adopted with respect 
    to other potentially unreliable evidence in
R. v. Hodgson
, [1998] 
    2 S.C.R. 449 (at para. 30) was required in this case.

[14]

Counsel for the Crown submits that the trial judges charge to the 
    jury properly and adequately alerted the jury to the dangers of relying on 
    the evidence of the three accomplices.  She emphasizes that defence counsel 
    took no exception to the charge either in the pre-charge conference, or following 
    the charge, and that they were in a better position than either counsel on 
    appeal, or this Court, to determine whether the charge was deficient. The 
    Crown submits that the jury could not have been in any doubt as to the care 
    with which they should approach the evidence of the three accomplices since 
    the problems with their evidence were emphasized from the moment counsel for 
    Mr. Mann opened to the jury on the first day of trial (following the opening 
    of the Crown), through their examination and cross-examination, the addresses 
    of counsel and, finally, the charge.

[15]

Counsel for the Crown submits that the law does not, and should not, 
    require the additional instruction sought by Mann and Soomel; that the trial 
    judge has a discretion as to the nature and extent of the warning required, 
    which attracts a deferential standard of review; and that the authorities 
    relied upon by the appellants relating to the effect of collusion on the admissibility 
    of evidence are not applicable in these circumstances.  Crown counsel also 
    submits that Soomels alternative submission concerning the alleged deficiencies 
    of the charge on corroboration is inconsistent with the law on corroboration 
    referred to in numerous authorities, including
Vetrovec,

supra,
and
R v. Kehler
, [2004] 1 S.C.R. 328, 2004 SCC 11.

(ii)
The Standard of Review

[16]

The standard of review to be applied to the decision of a trial judge 
    whether to give a
Vetrovec
warning, and the nature and extent 
    of that warning, is referred to in the following passage at para. 32 of the 
    reasons for judgment of Mr. Justice MacPherson, speaking for the majority 
    in
R. v. Harriott
(2002), 161 C.C.C. (3d) 481 (Ont. C.A.), 
    whose reasons were adopted by the majority of the Supreme Court of Canada 
    in dismissing the appeal at [2003] 1 S.C.R. 39, 2003 SCC 5:

The decision of a trial judge to give a Vetrovec warning 
    is discretionary.  There is also a good deal of discretion with respect to 
    the form the warning should take.  The discretion as to whether, and how, 
    to give a warning is reviewable, but an appellate court must show deference 
    to the trial judge and not lightly interfere with his or her decision:  see
Vetrovec
at 17-18;
R. v. Bevan
(1993), 82 C.C.C. (3d) 310 (S.C.C.) 
    at 325-27; and
R. v. Brooks
(2000), 30 C.R. (5
th
) 201 at 
    220 and 227, 141 C.C.C. (3d) 321 (S.C.C.).

(iii)
The Charge

[17]

The charge to the jury was lengthy.  I will begin with the portion 
    of the charge containing the
Vetrovec
warning.  Since it is 
    said to be wanting, I will set it out in full:

Now, let me give you a special warning about the testimony of C., G., 
    and U..
Youll recall 
    that I told you earlier about the credibility of witnesses. You should consider 
    the things I told you when you decide whether you believe C., G., and U.s 
    evidence.

In addition, however, I warn you that you should be extremely cautious 
    in accepting their testimony.  It is unsafe for you to rely on their evidence 
    alone.
Thats because 
    they are alleged to be accomplices in the Sohi homicide, thats because they 
    were involved in the illegal drug trade.
As well, in this case, C. and 
    G. have agreed to testify on a grant of immunity from prosecution, and, as 
    well, after the event, and, in breach of U.s bail condition, they had numerous 
    telephone conversations in which they discussed their evidence and the manner 
    in which they would testify in this courtroom, leaving open the possibility, 
    its up to you to determine, that they colluded together to tell a consistent 
    story in court in an effort to have Soomel and Mann convicted of first degree 
    murder.


You 
    should examine all of the other evidence in this case and look for evidence 
    that supports or confirms the testimony of C., G., and U..  What you should 
    look for is evidence that agrees with the important parts of their evidence 
    and makes you more confident that their testimony is true.

Now, 
    here are some examples of independent evidence coming from other sources that 
    is capable of supporting or confirming the evidence of these men.  Its for 
    you to decide whether or not that evidence, and evidence of a similar nature 
    does, in fact, support or confirm their evidence.
In the absence of any 
    confirming evidence, you should be reluctant to accept the evidence of these 
    men, especially to the extent that they suggest that the murder was planned 
    and deliberate.


Now, 
    here are a few examples.  The evidence of the experts Funk and Basant (phonetic), 
    look at that evidence to see if the cell phone locations that were identified 
    on the map  and youll have the map in the room with you  to see whether 
    those locations track the evidence of U., G., and C. as to when various telephone 
    calls were made from U.s cell phone.  And tab 8 deals with U.s cell phone, 
    and there are calls you can note at 7:47 to Sohis cell phone, 8:24, 9:34, 
    and 10:12, all to Sohis cell phone, and you can look at the locations of 
    those calls, and, as well, note the call from the pay phone near the Bargain 
    Castle.

Now, 
    theres objective evidence, as well, that some or all of the conspirators 
    were at Bear Creek Park, that is the fact that the bullets were found there 
    in the location G. indicated to the police, and the evidence of Mann which 
    confirms aspects of the evidence of C., G., and U. as to events at Bear Creek 
    Park.

The 
    gun pieces, the mask, and the gloves were found on Highway 91 where C. told 
    police they would be, and the evidence of Mann confirms C.s evidence in this 
    regard.

The 
    evidence of B., you can look at it, as to the movement of persons in and around 
    Sohis suite, and compare that with the evidence of the three individuals.

You 
    can look to the evidence of the firearms expert, Prendergast as to the firearm 
    and the pattern of cartridge ejection.  Thats Exhibit 17.  The location of 
    the bullets in the lower part of the trophy case, and the evidence of Sergeant 
    Mellis, the blood spatter expert.  This evidence is relevant to the dynamics 
    of the actual shooting, and is relevant to your consideration of Manns evidence 
    that he panicked when Sohi started to move back and forth and appeared to 
    lunge or start to lunge forward out of the couch.

And 
    just on that point, perhaps Ill note Prendergasts evidence just on that 
    ejection pattern point, and I think its Exhibit 17.  He described the ejection 
    pattern for spent cartridges after firing.  He indicated that, if the gun 
    was pointing at twelve oclock on an imaginary clock, the casings would eject 
    at between 3:30 and four oclock that is to the right and rear of the direction 
    of firing.

He 
    was asked if, assuming that the cartridges were located as shown on Exhibit 
    17, and that they were ejected from the gun, where the approximate location 
    of the firearm at the time of firing was, and he indicated that it would be 
    between the coffee table and the large sofa approximately.

Look 
    at the evidence of the police officers who followed the Soomel vehicle after 
    the shooting, to the extent that it confirms the evidence of C., G., and U. 
    as to who was in which car, or at least how many people were in which car, 
    and the directions they went.

Now, 
    look at the evidence concerning the renting by Mr. Soomel of the green Honda 
    Civic, and, of course, look at the evidence of the fact that Raj Soomel was, 
    indeed, shot.

Now, of course, youve heard the evidence of C., G., and U., themselves.  
    These witnesses are looked upon as accomplices, or at least alleged accomplices.  
    In the circumstances of this case, the evidence of one accomplice cannot confirm 
    or support the evidence of another, so dont consider the evidence of these 
    three individuals in looking for confirmation or corroboration of their evidence.

The 
    evidence of Mr. Mann, however, can be looked to for confirmation of aspects 
    of the evidence of G., C., and U., but the statements of Mr. Mann to the police, 
    to the extent that they were not adopted by him in testimony in this courtroom, 
    cannot be looked to as confirmatory evidence of Mr. C., Mr. G., and Mr. U. 
    in respect of Mr. Soomel.

Now, 
    Ive not pointed out all of the evidence that might be capable of supporting 
    the testimony of C., G., and U., and of showing it to be true.  Use the examples 
    Ive given you as a guide for identifying other evidence that might confirm 
    their evidence.

In the end, ask yourself whether enough of the important parts of their 
    testimony have been confirmed to persuade you that their stories are true.  
    Ask yourself whether this evidence has convinced you that the story of each 
    of C., G., and U. confirms that this was a planned and deliberate murder.  
    Ask yourself if thats true, and that it is safe for you to rely on it.

I 
    must tell you that you arent legally required to find such support before 
    you can rely on these witnesses testimony.  You may rely on that testimony 
    without finding support, if you are convinced beyond a reasonable doubt that 
    it is true.  However,
it is dangerous for you to accept the evidence of 
    C., G., and U. unless you find some support for it.




Finally, 
    in the case of C. and G., the Crown has filed letters of immunity.  These 
    letters contain a declaration that C. and G. will undertake to tell the truth 
    at trial.  I should tell you that this promise to tell the truth by C. and 
    G. in the letters of immunity must not be used by you to bolster their credibility.

[Emphasis added.]

[18]

The trial judge also instructed the jury that it was up to them whether 
    to accept some, none or all of a witnesss evidence; he gave them general 
    instructions on how to assess the credibility of witnesses; he warned them 
    that a deliberate lie under oath was serious and may well taint the entire 
    testimony of a witness; and he provided directions on the use of inconsistent 
    statements made by a witness under oath, with a warning that such a statement 
    may make it dangerous to accept the evidence of the witness.

[19]

The trial judge carefully reviewed the evidence of these witnesses.  
    Prior to giving the
Vetrovec
warning, he made a point of reviewing 
    12-14 alleged prior inconsistent statements in C.s evidence, eight alleged 
    prior inconsistent statements in G.s evidence, and five lies/prior inconsistent 
    statements arising from U.s evidence.

[20]

The trial judge did not specifically warn the jury about the possibility 
    of innocent contamination of the evidence of C., G. and U..  Nor did he warn 
    the jury that they should consider whether the evidence of these witnesses 
    could have been tainted as a result of police interrogation techniques.  In 
    that regard, the police showed these witnesses videotapes of extracts from 
    the evidence of other witnesses and arguably made it clear to them that the 
    police would only be satisfied with a statement which was consistent with 
    a planned and deliberate murder implicating Mann and Soomel.  The only reference 
    to that subject in the charge is brief, and is contained in the trial judges 
    summary of Manns theory that the police introduced the theory of a planned 
    and deliberate murder and that the witnesses modified their stories accordingly 
    with a view to obtaining a deal from the Crown.

(iv)
The Evidence

[21]

In order to place the appellants submissions in context, it is useful 
    to review portions of the evidence (with some editorial comment) in greater 
    detail.

[22]

I begin by noting that the central issue at trial was whether the Crown 
    had established beyond a reasonable doubt that Mann and Soomel had the intent 
    for first degree murder; that is, whether the Crown had proved that the killing 
    of Sohi was planned and deliberate.  The defence of Mann and Soomel was essentially 
    the same; that the killing occurred in the course of a robbery gone wrong.

[23]

It was not disputed that Mann, Soomel, C., G. and U. had planned to 
    visit Sohi the night of the killing.  The question was whether they had gone 
    there to rob him (according to Mann and Soomel) or to kill him (according 
    to the Crown).  (I do not propose to deal with a side issue raised by Manns 
    evidence as to whether there may also have been a plan to kidnap Sohi since 
    no counsel pursued this scenario at trial and it was only left to the jury 
    by the trial judge out of an abundance of caution.)

[24]

It was also undisputed that four days prior to Sohis killing, Soomels 
    brother was injured in a shooting at the Soomel home.  Further, there was 
    evidence that Sohi was involved with others in the theft of a large amount 
    of marijuana which Soomel and his associates were attempting to export to 
    Washington State.  As earlier stated, these events were alleged by the Crown 
    to be the motive for Sohis murder.

[25]

I turn, then, to a brief review of some of the other evidence which 
    was significant in this case.

[26]

At approximately 10:30 p.m. on September 14, 2000, Mr. Sohis landlord 
    heard sounds like a loud firecracker coming from Mr. Sohis suite.  He called 
    911 and the police arrived about five minutes later.  They found Mr. Sohi 
    slumped on his sofa with his feet under the undisturbed coffee table in front 
    of him, a telephone resting against his left arm, and a Sten machine gun with 
    silencer in semi-automatic mode (the murder weapon) lying across his body. 
    The body had 16 gunshot entrance wounds, 8 of which were in his chest area.  
    The expert evidence relating to blood spatter analysis indicated that Sohi 
    was seated on the sofa when he was shot.  The ballistics evidence was consistent 
    with the shooter being in control of the gun at the time of firing, as indicated 
    by the location of the wounds and the absence of a stitch pattern caused by 
    muzzle jump (recoil).  The Crown relied on this evidence, in itself, as 
    establishing that this was an execution, not an accidental panic-shooting.

[27]

A young friend of Sohi, B., testified that he was out with Sohi just 
    prior to the killing.  While they were together, Sohi received two calls on 
    his cell phone, after which they returned to Sohis residence.  A third call 
    came in at about 9:30 or 9:45 p.m. while they were standing in Sohis driveway.  
    Shortly thereafter, U. arrived and he and Sohi were alone together in Sohis 
    residence for about 15 minutes.  B., who was then sitting in Sohis car, noticed 
    another car parked behind him with an East Indian male in it (later determined 
    to be G.) who appeared to be talking on a phone.  B. saw U. walk past Sohis 
    car and get into the car with G..  B. then saw somebody crouched in the bushes 
    near the property line.  This person ran toward another car parked down the 
    street and both cars took off.  B. went back into Sohis residence and found 
    Sohis body.

[28]

C., who described himself as Soomels best friend, testified about 
    conversations he had with Soomel concerning the identity of those who had 
    shot Soomels brother and what should be done about it.  He stated that he 
    and Soomel ran into Sohi on September 14
th
after which Soomel 
    was convinced that Sohi was involved in the shooting.  They then went to Queen 
    Elizabeth Park to discuss getting a gun and U. joined them.  At that time, 
    they discussed a plan to kill Sohi that night.

[29]

C. testified that later that evening, he, U. and G. went to Bear Creek 
    Park where they found Soomel and Mann trying to load bullets into a gun clip.  
    Soomel stated that U. would be the set-up guy, Mann would go in as shooter 
    and the others would stand by.

[30]

C. testified that, after they arrived at Sohis residence, Soomel received 
    a radio communication from G. and Mann went into Sohis home.  When Mann came 
    out he said that he had done it and had put the gun in Sohis lap.  The group 
    then left the area in two cars and Mann threw the bag with the gun clips, 
    mask and gloves onto the side of the highway near a Sikh temple.

[31]

In cross-examination, C. admitted to being involved in the transport 
    of drugs to Washington State, lying in his sworn statements of October 2, 
    2000, and attempting to defraud ICBC.

[32]

G. also testified about the meetings in Queen Elizabeth Park and Bear 
    Creek Park in which Soomel made it clear that this is going down tonight 
    and assigned roles to each of the participants in the plan.  G.s evidence 
    was similar in material respects to that of C..  G. stated that he knew the 
    plan was not going to be just a rip-off of Sohis home and that he went to 
    Sohis with the others knowing there was going to be a murder.

[33]

G. acknowledged in cross-examination that he had lied under oath numerous 
    times when giving statements to the police; that he had lied under oath to 
    protect himself and U. at the preliminary inquiry; and that he had also participated 
    in the transport of drugs into Washington State.

[34]

U., too, testified about the meetings at Queen Elizabeth Park and Bear 
    Creek Park.   His evidence was clear that Soomels plan was to kill Sohi, 
    with Mann to be the shooter.  In cross-examination, however, U. testified 
    that he warned Sohi about the plan and that he also attempted to call it off 
    at the last minute.  He stated that when he left Sohis residence, Sohi was 
    on the telephone and that, as he neared the end of Sohis driveway, he heard 
    the sound of rapid gunfire and breaking glass.

[35]

U. was arrested the day after the murder and gave a number of statements 
    to the police.  He was released on bail with no contact provisions.  He admitted 
    that he telephoned C. and G. on 172 occasions contrary to the no contact order.  
    He taped all of those calls.  He also admitted his involvement in the transport 
    of drugs into Washington State; acknowledged lying to the police with respect 
    to several matters and, in one of his taped conversations with G., stated 
    that he hoped that if Soomel and Mann were convicted of first degree murder, 
    the Crown would not bother wasting $1 million to prosecute him.

[36]

Mann testified that he had met Soomel on 4 or 5 occasions prior to 
    the shooting, but that he did not meet C. or G. until the evening of September 
    14 in Bear Creek Park.  He testified that he agreed to help the group get 
    their drugs back from Sohi because Soomel told him they were short one person 
    for their plan.  When he asked Soomel why they needed the gun, Soomel said 
    that if Sohi was at home, they may have to hold him up.  Mann said that the 
    plan was only to retrieve goods from Sohis home, that U. was to determine 
    whether Sohi was at home, G. was to be the lookout and C. was to ransack the 
    place.  Mann agreed to carry the gun and obtained a ski mask to cover his 
    face.  After they got to Sohis home, G. radioed that U. had come out of the 
    house and Mann said U. told him to go in and that the others would be behind 
    him.  Mann said that when he went in he pointed the gun at Sohi and told him 
    not to move, that Sohi made a motion as if to lunge at Mann, and that Mann 
    panicked and pulled the trigger.  He said when the gun stopped firing he threw 
    it down and ran out of the house.  He said he was unfamiliar with the gun 
    and how it worked.  He said that he had not intended to kill Sohi and that 
    there was no discussion of doing so  that it was only meant to be a holdup.  
    On the drive back to Vancouver, Mann stated that they stopped beside the highway 
    and Mann threw away a bag containing the clips and mask.

[37]

Mann gave a statement to the police when he was arrested on October 
    13, 2000.  He began by stating that Soomel had planned the entire incident 
    because Soomel believed that Sohi had shot his brother.  He initially stated 
    that Soomel was the shooter.  Later in that statement, Mann admitted that 
    he was the shooter and that Soomel masterminded the plan which was to kill 
    Sohi and get their stuff back.  Mann testified at trial that this statement, 
    and others he made to persons in authority, were false in material respects.

(v)
The Police Interrogation Techniques

[38]

It is common ground that at the time C., G. and U. were suspects 
    in Sohis murder, the police attempted to elicit statements from them by showing 
    them video extracts from the police interviews with B. and the other suspects.  
    The interviewing officer said that this was done to convince the suspect that 
    he was caught and to avoid mischaracterizing the statement of one witness 
    when putting it to another witness.  He agreed with defence counsel that there 
    was a progression in the statements of each of the accomplices starting with 
    a general denial, to a robbery scenario, to the admission of involvement in 
    a planned and deliberate murder orchestrated by Soomel and carried out by 
    Mann.

[39]

At trial, counsel for Mann put in issue the legal propriety of the 
    police interrogation methods with a view to establishing that Manns statements 
    were involuntary and obtained in breach of the Charter.  Following a
voir 
    dire
, the trial judge admitted Manns statements and rejected the suggestion 
    that the police techniques utilized were either improper or illegal.  That 
    finding is not challenged on appeal.  Rather, counsel for Mann and Soomel 
    say that the police techniques gave rise to a real risk that the witnesses 
    either deliberately, or as a result of innocent contamination, adapted their 
    evidence to fit that of the other witnesses.  Counsel also submit that it 
    was apparent from the nature of the police interrogation that the police were 
    not prepared to settle for anything less than a version of events which supported 
    a verdict of first degree murder against Mann and Soomel.  Counsel say that 
    it was incumbent on the trial judge in these circumstances to warn the jury 
    of the potential for contamination of the evidence (innocent, or otherwise) 
    arising from the police interrogation techniques, and that he erred in failing 
    to do so.

[40]

This objection to the charge was not raised by defence counsel at trial. 
     Nor did counsel seek to have the entire interviews of the accomplices (the 
    tapes and transcripts) placed before the jury so that they could assess the 
    extent to which there was any real risk that the evidence given by the accomplices 
    at trial was tainted (contaminated) by the police interview techniques.  Arguably, 
    this was to the benefit of the defence, who were able to selectively tailor 
    their cross-examination of the accomplices without having the full interviews 
    (which, on the whole, were damning to their clients) placed before the jury.

[41]

Further, it is difficult to accept that innocent contamination of the 
    evidence of the accomplices, through police interrogation techniques, or otherwise, 
    was a significant factor in this case.  Rather, the case for the defence was 
    that the accomplices had deliberately colluded together to fabricate a story 
    which would implicate Mann and Soomel in the planned and deliberate murder 
    of Sohi in order to obtain leniency.

[42]

Given the manner in which the trial unfolded, and the nature and extent 
    of the warning to the jury with respect to the evidence of the accomplices, 
    I am not persuaded that the absence of a reference in the charge to potential 
    contamination of the evidence of these witnesses as a result of police interrogation 
    techniques amounted to reversible error.  Since this is only one aspect of 
    the appellants submission as to the contamination of the accomplices evidence, 
    however, I will address the issue of collusion before expressing a conclusion 
    as to the adequacy of the trial judges overall warning with respect to their 
    evidence.

(vi)
Collusion/Corroboration

[43]

Counsel for the appellants submit that the trial judge erred in failing 
    to adequately deal with the potential for, and significance of, collusion 
    between the accomplices arising from the regular contact between them prior 
    to trial despite the fact that Mr. U. was subject to a no contact bail order.  
    Counsel submit that the 172 tape-recorded telephone conversations between 
    U., C. and G. were clear evidence of collusion and also a potential source 
    of innocent contamination of their evidence.  Counsel also referred to U.s 
    evidence that he had studied the statements of the other two accomplices, 
    and the transcripts of their evidence at the preliminary hearing, and had 
    sent notes to them concerning their evidence on several occasions.  Further, 
    the three accomplices acknowledged that they had agreed not to let anyone 
    know that they had been in contact.

[44]

Counsel for the appellants submit that the trial judge should have 
    given a separate warning to the jury with respect to this evidence, in addition 
    to the
Vetrovec
warning.  In essence, counsel submit that the 
    jury should have been given an instruction to approach the evidence of the 
    accomplices by a two-stage analysis.  At the first stage, the jury would determine 
    whether there was a real risk that the evidence of the accomplices was tainted, 
    either deliberately or innocently, by collusion and/or the effect of the police 
    interrogation techniques.  If the jury concluded that there was a real risk 
    of contamination, they should have been told that they could not look to other 
    evidence to confirm the accomplices evidence and that they must give their 
    evidence little, if any, weight.  If the jury was not persuaded that there 
    was a real risk of contamination of their evidence, they could go on to the 
    second stage, to determine if there was other evidence to support, or confirm, 
    the evidence of the accomplices.

[45]

In support of this submission, counsel for the appellants suggest that 
    just as a real risk of collusion will render similar fact evidence inadmissible 
    (see
Shearing,
supra
,
at paras. 40-41 and
Handy,
supra
,
at paras. 99 and 104-113), so, too, a real risk 
    that presumptively admissible evidence has been tainted by collusion should 
    render it entitled to little, if any, weight and the jury instructed accordingly.

[46]

Counsel for the appellants also draw an analogy between the evidence 
    tainted by oppression in the
Hodgson
decision,
supra
, 
    which called for an instruction to the jury that the evidence should be given 
    little, if any, weight, and the tainted evidence of C., G. and U. which, 
    counsel submit, required a similar instruction.

[47]

In response to these submissions, counsel for the Crown again emphasizes 
    that no objection was taken by counsel to the charge to the jury in this regard. 
    Counsel for the Crown also submits that the full transcripts of the telephone 
    calls (which were not in evidence) would not support such a conclusion.  The 
    Crown also observes that the appellants were able to take full advantage of 
    selective extracts from the telephone conversations between the accomplices 
    to attempt to persuade the jury that their evidence was tainted and unreliable, 
    without having to deal with those aspects of the transcripts which tended 
    to bolster the accomplices evidence.

[48]

Crown counsel further submits that similar fact cases such as
Handy
and
Shearing
, are of little assistance in analyzing this issue 
    since they dealt with presumptively inadmissible evidence, whereas the evidence 
    in this case was presumptively admissible.  The Crown also observes that the 
    entire foundation for admitting similar fact evidence falls away where there 
    is evidence of collusion between witnesses since evidence of collusion directly 
    contradicts the improbability of coincidence on which similar fact evidence 
    depends for its probative value.

[49]

Similarly, the Crown submits that
Hodgson
and similar 
    decisions are of no assistance in a case such as this where the obvious need 
    for caution in approaching the evidence of witnesses whose evidence is suspect 
    is covered by the
Vetrovec
warning, modified as necessary to 
    meet the facts of the case.  The Crown urges this Court not to require yet 
    another warning to add to the burden of trial judges and juries who must already 
    grapple with lengthy and complex charges.

[50]

In summary, the Crown submits that the entire purpose of a
Vetrovec
warning is to warn the jury about potential sources of unreliability in the 
    evidence of witnesses (including collusion), and to assist them in dealing 
    with that evidence.  The Crown submits that the trial judges charge fulfilled 
    those functions.

[51]

I agree with the Crown that the
Vetrovec
warning was 
    sufficient in this case to alert the jury to the dangers presented by the 
    accomplices evidence and the care which should be taken in considering their 
    evidence.  In fact, the warning (set forth in full at para. 17,
supra
) 
    contained a specific reference to the danger of the accomplices evidence 
    being tainted by collusion, as follows:

In addition, however, I warn you that you should be extremely 
    cautious in accepting their testimony.  It is unsafe for you to rely on their 
    evidence alone. Thats because they are alleged to be accomplices in the Sohi 
    homicide, thats because they were involved in the illegal drug trade.  As 
    well, in this case, C. and G. have agreed to testify on a grant of immunity 
    from prosecution, and, as well, after the event, and, in breach of U.s bail 
    condition, they had numerous telephone conversations in which they discussed 
    their evidence and the manner in which they would testify in this courtroom, 
    leaving open the possibility, its up to you to determine, that they colluded 
    together to tell a consistent story in court in an effort to have Soomel and 
    Mann convicted of first degree murder.

[52]

Thus, the trial judge specifically linked the concept of collusion 
    to the key issue in the case, that is, the element of planning and deliberation 
    necessary to found a conviction against Mann and Soomel for first degree murder.

[53]

To assist the jury in assessing the weight, if any, they should attribute 
    to the evidence of the accomplices, the trial judge invited the jury to look 
    to other evidence to determine whether they could find support or confirmation 
    of the evidence of each accomplice.  The trial judge assisted them in this 
    regard by referring to examples of evidence which were capable of corroborating 
    the accomplices evidence.  Counsel agreed that, in light of the 172 telephone 
    calls between the accomplices, the trial judge should also instruct the jury 
    that, in this case, they could not rely on the evidence of one accomplice 
    to corroborate that of another.  This aspect of the charge was extremely favourable 
    to the defence and was clearly designed to take into account the risk of contamination 
    through collusion.

[54]

I am unable to agree with counsel for the appellants that the circumstances 
    of this case required a two-stage charge to the jury proposed by counsel for 
    the appellants.  Rather, I agree with the Crown that it is only by looking 
    at the evidence as a whole, including the independent evidence, that the jury 
    would be able to determine the extent to which they could rely on the evidence 
    of the accomplices and the weight to give to their evidence.  For example, 
    the jury might well decide that there was a real risk of collusion between 
    the accomplices, but find sufficient confirmation of their evidence in the 
    evidence of other witnesses to conclude, nonetheless, that the substance of 
    their evidence was true.

[55]

There is no support in the authorities for a two stage approach in 
    circumstances such as these; nor am I persuaded that this Court should make 
    new law in that regard.

[56]

I also agree with the Crown that the approach taken to similar fact 
    evidence and other presumptively inadmissible evidence in the authorities 
    referred to by counsel for the appellants is of little assistance in this 
    case which is dealing with evidence which is presumptively admissible.  Nor 
    am I persuaded that the trial judge was required, as a matter of law, to instruct 
    the jury in accordance with the
Hodgson
decision.  The
Vetrovec
warning has withstood the test of time and is widely utilized to deal with 
    the evidence of witnesses whose evidence may be suspect for a variety of reasons.  
    Further, it is settled law that the decision whether to give such a warning, 
    and the nature and extent of that warning, are matters of discretion for the 
    trial judge, to be exercised after taking into account the views of counsel, 
    and the individual circumstances of each case.

[57]

Finally, I disagree with Soomels alternative submission that the trial 
    judge erred in failing to charge the jury that they must look for confirmatory 
    evidence that went specifically to the issue of planning and deliberation, 
    and that it was insufficient to direct them to look for evidence confirmatory 
    of that of the accomplices in a more general sense.  In my view, this submission 
    cannot be sustained in the light of
Vetrovec
and cases following 
    it, including the recent decision of the Supreme Court of Canada in
Kehler
, 
    supra
.  Further, the trial judge did instruct the jury that: In the absence 
    of any confirming evidence, you should be reluctant to accept the evidence 
    of these men, especially to the extent that they suggest that the murder was 
    planned and deliberate.

[58]

In my view, it would have been obvious to the jury from the entire 
    tenor of the trial, including the extensive cross-examination of the three 
    accomplices, the addresses of counsel, and the charge to the jury that the 
    driving force behind the defence was that the accomplices were unmitigated 
    liars of unsavoury character who had concocted a story about a planned and 
    deliberate murder to save their own skins at the expense of Mann and Soomel.  
    Red flags were raised with respect to this evidence by everyone - the defence, 
    the Crown and the trial judge.   In the end, it was for the jury to determine 
    the extent to which they could rely on this evidence.

[59]

In examining the adequacy of the trial judges charge with respect 
    to this evidence, I agree with the Crown that it is instructive, but not determinative, 
    that defence counsel at trial did not seek such an instruction or object to 
    the instructions given.  In that respect, I find apposite the remarks of Mr. 
    Justice MacPherson in
Harriott
,
supra
, at paras. 40-42:

Trial 
    counsel play an important role in suggesting whether, and in what form, a
Vetrovec
warning should be given.  That is because a
Vetrovec
warning can be a two-edged sword, drawing attention not only to the disreputable 
    character and/or conduct of the accomplice, but also to evidence that might 
    confirm the accomplices testimony.  As Dickson J. observed in
Vetrovec
, 
    at p. 7: The accused is in the unhappy position of hearing the judge draw 
    particular attention to the evidence which tends to confirm the testimony 
    the accomplice has given.  Cogent prejudicial testimony is thus repeated and 
    highlighted.

The 
    clearer and sharper a trial judges warning about the testimony of an accomplice, 
    the more likely it is that it will be accompanied by a full and robust review 
    of potential confirming evidence.
Thus, although the ultimate responsibility 
    for deciding whether, and in what form, to make a
Vetrovec
warning 
    rests with the trial judge (
Brooks
,
supra
, at p. 229), trial 
    counsel is in a particularly good position to assess whether, from the perspective 
    of an accused, the trial judge has given an inadequate warning.  The absence 
    of an objection, especially on such a well-known matter, should be regarded 
    as a strong sign that the language employed by the trial judge was appropriate, 
    at least from the perspective of the accused.


[Emphasis added.]

[60]

In summary on this point, I am satisfied that the jury would have understood 
    the need for extreme caution in approaching the evidence of the accomplices 
    and that the trial judges warning in that regard was sufficient in all the 
    circumstances.  In coming to that conclusion, I adopt the following words 
    of Lamer C.J.C., speaking for the majority, in
R. v. Jacquard
(1997), 113 C.C.C. (3d) 1 at para. 32:

I cannot emphasize enough that the right of an accused to a properly 
    instructed jury does not equate with the right to a perfectly instructed jury.  
    An accused is entitled to a jury that understands how the evidence relates 
    to the legal issues. This demands a functional approach to the instructions 
    that were given, not an idealized approach to those instructions that might 
    have been given.

[61]

Applying a functional analysis in this case, I am unable to find that 
    the trial judges charge to the jury with respect to the evidence of the accomplices 
    was inadequate or in error when viewed in light of the charge as a whole, 
    and in the greater context of the trial as a whole.  I would, therefore, dismiss 
    this ground of appeal.

(3)
Admission of Manns Statements

[62]

Counsel for Mann submits that the trial judge erred in admitting into 
    evidence Manns statements to the police.  In particular, he submits that 
    the trial judge erred in failing to find that Manns statements to the police 
    were obtained in breach of his rights under s. 10(b) of the Charter when the 
    police denied him the right to have his lawyer present during their interrogation 
    of him on October 13, 2000.  As earlier noted, Mann acknowledges that the 
    facts with respect to this issue are sufficiently similar to those before 
    this Court in
Ekman
,
supra
, that the same result would 
    follow.  The Crown agrees.  For that reason, I do not propose to review the 
    background giving rise to this submission.  I would dismiss this ground of 
    appeal by application of the
Ekman
decision.

(4)
Effect of the Admission of Manns 
    Statements on Soomel

[63]

Counsel for Soomel submits that the trial judge erred in failing to 
    act on his own motion to sever Mr. Soomel from the indictment after admitting 
    Manns statements into evidence.  In the alternative, counsel for Soomel submits 
    that the trial judge failed to give an adequate warning with respect to the 
    use the jury could make of Manns statements in relation to Soomel.

(i)
Severance

[64]

In his initial statement to the police, Mann told the police of a plan 
    to kill Sohi, but identified Soomel as the shooter.  Later in that interview, 
    and in subsequent statements, Mann admitted that he was the shooter and that 
    the killing happened in the course of a plan either to steal drugs back from 
    Sohi, or to kidnap Sohi and force him to take them to others who had been 
    involved in shooting Soomels brother.

[65]

In his evidence at trial, Mann denied that there was any plan to kill 
    Sohi and his evidence as a whole did not implicate him, or Soomel, in a planned 
    and deliberate killing.

[66]

Counsel for Soomel said that once Manns statements were admitted into 
    evidence, there was a significant potential for the first statement, in particular, 
    to be used against Soomel such that he could no longer be confident of having 
    a fair trial.  While counsel for Soomel acknowledges that persons jointly 
    indicted in what is alleged to be a common enterprise will generally be tried 
    together, and that the relevant authorities have identified strong policy 
    reasons favouring joint trials, he submits that this is one of those relatively 
    rare instances in which the trial judge should have granted severance on his 
    own motion.

[67]

Counsel for the Crown emphasizes that there was no motion for severance 
    and submits that the content of Manns statements did not require the trial 
    judge to order severance of his own motion.  Rather, the admission of those 
    statements called for a warning to the jury that they could not use Manns 
    statements against Soomel, except to the extent that their contents had been 
    adopted by Mann in his evidence at trial.  Counsel for the Crown submits that 
    the trial judges charge to the jury in this regard was sufficient to offset 
    any potential prejudice to Soomel once Manns statements were admitted.

[68]

I have reviewed the authorities referred to by counsel.  In the result, 
    I am not persuaded that this is a case in which the requirements of justice 
    or a fair trial called upon the trial judge to act of his own motion to sever 
    Soomel from the indictment.  While Manns first statement to the police implicated 
    Soomel as the shooter, Mann quickly resiled from this position later in this 
    statement, in his subsequent statements and in his evidence at trial. There 
    was no issue at trial that this was a joint enterprise and that Mann was the 
    shooter.  The real issue was whether the murder was planned and deliberate.  
    This is evident from the final passages of the closing address of Soomels 
    counsel who stated:

Mr. Soomel was involved.  He was outside.  He did assist in putting this together.  
    They all did.  They were all trying to get the drugs back and their money, 
    so he is responsible.

Hes 
    not responsible for murder, second degree or first degree, but he is responsible, 
    certainly indirectly, in the death of Mr. Sohi.  When youre responsible in 
    this way, for the death of somebody, without an intention that he die  be 
    killed, then, its a manslaughter, so at the very most, ladies and gentlemen, 
    thats what Mr. Soomel is responsible for in these actions, for manslaughter.  
    Thats it.

There is, in my submission, no basis for proof beyond 
    a reasonable doubt that he was  intended the death of Mr. Sohi, or worked 
    towards that, or planned and deliberated it.  Theres no evidence here of 
    a murder.

(ii)
The Warning

[69]

In my view, the more important issue in relation to the effect of Manns 
    statements on Soomels right to a fair trial is not whether the trial judge 
    should have ordered severance, but whether the warning he gave to the jury 
    with respect to those statements made it clear to the jury that they could 
    not use those statements against Soomel.  In that regard, the trial judge 
    charged the jury as follows (at paras.  18, 20, 35 and 36):

Theres 
    a special rule that applies when someone testifies about something that one 
    of the persons on trial said outside the courtroom.  You may only use anything 
    you find one person charged said outside the courtroom for a limited purpose 
    in deciding the case.  Whatever Mr. Soomel or Mr. Mann said to a witness outside 
    of the courtroom is only evidence concerning the person who said it, that 
    is either Mr. Soomel or Mr. Mann, as the case may be.  Even if the statement 
    describes what the other person charged said or did, you must not consider 
    it in deciding the case of anyone else on trial.



Unless 
    I tell you otherwise, you may consider the testimony of Mr. Mann in this courtroom 
    to help you decide the case of both persons who are on trial, that is both 
    Mr. Mann and Mr. Soomel, not just the case of Mr. Mann.  But
remember
, 
    of course, and I will discuss this in more detail later,
you may use the 
    statements made by Mr. Mann to the police authorities only in deciding the 
    case against Mr. Mann, except to the extent that Mr. Mann expressly adopted 
    those portions of the statements in his testimony in this courtroom.




Now, 
    here, of course, there is more than one accused, and our law provides a safeguard 
    for the accuseds right to a fair trial when theres more than one accused 
    on trial.
That safeguard is that any statements made by Mr. Mann are evidence 
    against only him.  Theyre not evidence against Mr. Soomel.
Each accused 
    must be treated as if he were tried separately.

As a general rule, each accused is only accountable 
    for his own out-of-court statements, and he cannot be found guilty because 
    of a statement made to the police by a co-accused,
and thats mostly because the out-of-court 
    statements made to the police by Mr. Mann were not made in the presence of 
    Mr. Soomel.  He was, therefore, denied the chance to object or comment upon 
    what was said or written about him, and I remind you, as well, when Im talking 
    about what is evidence in the statements and against whom it is evidence, 
    that the questions of the police officers asking  or conducting the interview 
    are not evidence against anyone.

[Emphasis added.]



[70]

Counsel for Soomel suggested that these passages were not sufficient 
    to bring home to the jury the fact that they could not use Manns statements 
    against Soomel.

[71]

The Crown replied that this aspect of the charge was sufficient, but 
    that, in any event, the trial judge referred to the limited use which could 
    be made of Manns statements in relation to Soomel at various other points 
    during the trial and in his charge.  Those further references included:

(a) 
    an instruction to the jury that they could only find an accused guilty if, 
    after you consider all of the evidence admissible against that accused, you 
    are satisfied that the Crown has proved its case beyond a reasonable doubt 
    in respect of that person;



(b) 
    an instruction that you must consider and decide the case of each person 
    on trial separately and individually, and in light of only that evidence admissible 
    against that accused.  You do not have to make the same decision for each 
    person on trial;



(c)  
    an instruction that the statements of Mr. Mann to the police, to the extent 
    that they were not adopted by him in testimony in this courtroom, cannot be 
    looked to as confirmatory evidence of Mr. C., Mr. G., and Mr. U. in respect 
    of Mr. Soomel;



(d)  an instruction to remember that while these men are being tried 
    together, their individual guilt must be determined only in respect of the 
    evidence led in court which is admissible against them individually.  The 
    most important example of this is the fact that Mr. Manns statements to police, 
    except to the limited extent that he adopted portions of them in court, is 
    evidence only against Mr. Mann, and cannot be used by you in considering the 
    guilt of Mr. Soomel;

[72]

At the request of Soomels counsel the trial judge also gave a warning 
    to the jury before the officer who interviewed Mann was called to give evidence 
    of Manns statements.  That warning included the following passage:

The 
    next thing Id like to say about the statements is that Mr. Manns statements, 
    those made by Mr. Mann himself, are evidence against Mr. Mann only.  They 
    arent evidence against any other person in particular.  Mr. Manns statements 
    that youre about to see are not evidence against Mr. Soomel, and Ill talk 
    about that more in my final charge to you.



[73]

The trial judge gave a similar warning when another police officer 
    gave evidence of Manns statements made during the re-enactment on October 
    14
th
.

[74]

In addition to the instructions given to the jury by the trial judge 
    with respect to this issue, all counsel, including Crown counsel, warned the 
    jury that the evidence of Mann could only be used against Mann and could not 
    be used as evidence against Soomel.  Crown counsel submitted that the limitation 
    on the use of Manns statements was referred to on 17 occasions during the 
    trial.

[75]

I conclude that the jury was properly and adequately instructed by 
    the trial judge with respect to the use which could be made of Manns statements 
    in relation to Soomel.  I am not persuaded that there was a complexity to 
    this case which made it unlikely that the jury would be able to apply this 
    instruction to the evidence before them.  In that regard, I note the following 
    passage from the judgment of Chief Justice Dickson, speaking for the majority 
    on this point in
R. v. Corbett
(1988), 41 C.C.C. (3d) 385 (S.C.C.) 
    at pp. 400-401:

In 
    my view, it would be quite wrong to make too much of the risk that the jury
might
use the evidence for an improper purpose.  This line of thinking 
    could seriously undermine the entire jury system.  The very strength of the 
    jury is that the ultimate issue of guilt or innocence is determined by a group 
    of ordinary citizens who are not legal specialists and who bring to the legal 
    process a healthy measure of common sense.  The jury is, of course, bound 
    to follow the law as it is explained by the trial judge.  Jury directions 
    are often long and difficult, but the experience of trial judges is that juries 
    do perform their duty according to the law.  We should regard with grave suspicion 
    arguments which assert that depriving the jury of all relevant information 
    is preferable to giving them everything, with a careful explanation as to 
    any limitations on the use to which they may put that information.  So long 
    as the jury is given a clear instruction as to how it may and how it may not 
    use evidence of prior convictions put to an accused on cross-examination [in 
    this case, statements of a co-accused], it can be argued that the risk of 
    improper use is outweighed by the much more serious risk of error should the 
    jury be forced to decide the issue in the dark.

It is of course, entirely possible to construct an argument 
    disputing the theory of trial by jury.  Juries are capable of egregious mistakes 
    and they may at times seem to be ill-adapted to the exigencies of an increasingly 
    complicated and refined criminal law.  But until the paradigm is altered by 
    Parliament, the court should not be heard to call into question the capacity 
    of juries to do the job assigned to them.  The ramifications of any such statement 
    could be enormous.  Moreover, the fundamental
right
to a jury trial 
    has recently been underscored by s. 11(f) of the Charter.  If that right is 
    so important, it is logically incoherent to hold that juries are incapable 
    of following the explicit instructions of a judge.

[76]

In the result, I am satisfied that this was a proper case for a joint 
    trial; that there was not a persuasive basis for severing Soomel from the 
    indictment; that the trial judges charge to the jury on the use of Manns 
    statements in relation to Soomel were clear and complete; and that it would 
    be inappropriate to assume that the jury had not followed those instructions 
    in their deliberations.  I would, therefore, dismiss this ground of appeal.

CONCLUSION

[77]

I would dismiss the appeals.



The Honourable
Madam Justice Prowse

I Agree:

The Honourable Madam
Justice Southin

I Agree:

The Honourable
Mr. Justice Thackray




