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Any Air-India appeal faces huge hurdles: experts
Description: Michael Byers, Academic Director, believes the chances for a successful appeal are slim.
Date: 16 March 2005
Author: Kirk Makin
Source: The Globe and Mail, A10
Crown case hampered by strong findings by trial judge against evidence, credibility

There is every chance that the B.C. Crown will appeal yesterday's Air-India acquittals, but overturning them will be an enormous uphill slog, legal experts predict.

Senior courts have repeatedly stressed that trial judges must not be second-guessed when it comes to factual findings about evidence and the credibility of witnesses, they said.

Yet, that is precisely the sort of strong finding laced throughout the ruling by B.C. Supreme Court Judge Bruce Josephson that went heavily against the Crown.

"If there are strong findings of credibility against the Crown, that is pretty much unassailable," said Alan Gold, a Toronto defence lawyer with extensive appellate experience.
"The Crown faces a real uphill battle."

The B.C. Ministry of the Attorney-General has 30 days in which to decide whether to appeal. In decisions of this sort, the Crown frequently delays announcing its intention until the very last day.

The key to a successful appeal lies in locating errors that are strictly legal - such as the improper admission or exclusion of important evidence, said University of British Columbia law professor Michael Byers.

"In a criminal trial as heavily fact-laden as this one, it makes the likelihood of an appeal - at least, a successful one - difficult," Prof. Byers said. "The judge must have done something potentially critical on a point of law, and I don't see that here."

The most fertile terrain for the Crown is likely to come from pretrial motions, especially those that involved interpreting the Charter of Rights and Freedoms.

However, Vancouver criminal lawyer Mike Mulligan said the Bagri and Malik defence teams wisely made many concessions when it came to conceding facts. Not only did this reduce the length of the prosecution, he said, it reduced the number of potential rulings by the trial judge - any of which could have formed the basis of an appeal.

Mr. Mulligan said that appellate courts are notoriously loath to "reargue" cases.

"If this case amounts to the credibility of a paid informer and an ex-lover, that will be exceedingly difficult to appeal," he said.

Judge Josephson's credibility findings were certainly devastating to the Crown. He described prosecution witnesses variously as "an unmitigated liar, " motivated by animus or financial gain, or "wholly" incapable of belief.

Mr. Gold said that because of the superior might of the state, the system is structured to make it more difficult for the Crown to overturn a verdict than for the defendant to win a new trial.

Even when the Crown finds a basis for an appeal, he said, the issues must have sufficient impact to have potentially altered the course of the trial and verdict. "From press reports of the case, I'm not aware of any major legal issues where the case turned against the Crown," Mr. Gold said.

Still, he added, a skilled lawyer can always find a toehold from which to launch an appeal.

"There is a saying that an appeal lawyer who can't find a ground of appeal has probably fallen asleep," said Mr. Gold. "I don't have any doubt that one can always draft a notice of appeal. But that is very different from having a real prospect of success down the road."

Mr. Mulligan said that practically speaking, appellate courts are well aware of the financial and human costs of a difficult trial. They are equally aware that in marked contrast to the trial judge, they have had no opportunity to assess the nuances of a trial or watch witnesses firsthand.

"The Court of Appeal is going to be reluctant to interfere with a 16-month trial like this," he said.

Yesterday's ruling raised another compelling legal question: Could the defendants sue the Crown over the years they have spent in pre-trial custody?

Experts said yesterday that it would be necessary to show that the Crown was malicious or had an improper motive for the way it conducted the investigation and prosecution - which constitutes a very high hurdle.

Julian Falconer, a Toronto lawyer who has helped several clients sue authorities, said the key to a successful lawsuit is a judicial finding that police or Crown prosecutors showed bad faith or improper motives.

"It really comes down to what kind of findings were made by the trial court," Mr. Falconer said.

"The Crown is entitled to present a case which may well not be found strong enough to ground a conviction. But it doesn't mean an accused has a malicious-prosecution action. Absent serious findings of malice or reckless investigation, it becomes very difficult for an accused person who is acquitted."

B.C. Attorney-General Geoff Plant defended the justice system, saying it does "what we want it to do."

Mr. Plant said senior Crown counsel are reviewing the judgment to determine whether there are grounds for appeal, but he acknowledged it is difficult to appeal findings of credibility, as the judge made in the Air-India case.

With a report from Canadian Press

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