A new trial has been ordered for a Toronto-area man convicted in a fatal stabbing after Ontario’s highest court found the trial judge erred in ruling that his confession was voluntary.
A jury found Hamza Othman guilty of second-degree murder two years ago, after he and his friends were involved in a street brawl in Mississauga, Ont., that left another man dead.
Court heard Othman and his friends had been asked to leave a backyard party to which they may or may not have been invited in October 2014 when one of the partygoers “sucker-punched” someone in their group.
Another of Othman’s friends also got punched while trying to intervene but eventually the group left. Court heard that as they made their way to the street, they damaged a car mirror.
Between 20 and 70 people left the party to confront them, and court heard that in the ensuing fight, Othman – who was 19 at the time – fatally stabbed a man with a pocketknife.
Othman gave an inculpatory statement to police hours later but appealed the conviction on four grounds, including that his confession was not voluntary. The appeal court accepted his submissions on each of the grounds.
In a decision released Monday, the three-judge panel noted that comments made by the interviewing officer undercut Othman’s right to silence and the advice he received from his lawyer.
“Police assertions to the effect that an accused’s credibility is at its highest during a police interview and that a trial court will see and take a negative view of a refusal to speak are legally incorrect and undermine the accused’s right to silence,” it wrote.
“The trial judge erred by failing to identify improper threats, inducements and a quid pro quo offered by the interviewing officer and by failing to consider whether, in the face of those threats and inducements, the Crown had satisfied its onus of proving beyond a reasonable doubt that the appellant’s statement was voluntary.”
The panel also agreed the trial judge erred in his instructions to the jury, namely in refusing to include the defence of others, in giving unbalanced instructions on self-defence and in dealing with the issue of provocation.
In excluding the possibility of the defence of others, the judge mistakenly focused only on what Othman said during cross-examination, the appeal court said.
“There were other aspects of the appellant’s testimony in chief and his statement to police, as well as the testimony of others, that provided a basis for the defence to be left with the jury,” the panel wrote. “Although aspects of the appellant’s cross-examination may have undermined the basis for that defence, it was for the jury to determine what aspects of the evidence they would rely on, not the trial judge.”
The judge’s instructions to the jury on the possibility of self-defence also ignored evidence that could have supported the appellant’s account, the panel said.
The panel pointed to the judge telling the jury that common sense would suggest Othman would have visible injuries if he had been repeatedly punched, without drawing attention to the testimony of a police photographer who said bruises often don’t show up immediately. Nor did the judge tell the jury to keep in mind the appellant is dark-skinned, it said.
“This statement telegraphed the trial judge’s view that the appellant’s evidence of being punched and suffering facial injuries was not credible,” it said.
The trial judge allowed the defence of provocation but virtually eliminated one aspect of it in his instructions to the jury, saying there was no evidence that the victim or his friends engaged in a wrongful act or insult that was sudden.
“On our review of the record, there was evidence capable of supporting a finding of suddenness. Further, we read this instruction as the trial judge offering his view that suddenness could not be made out,” the appeal judges wrote. “In doing so, he usurped the function of the jury.”
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