In one of the most devastating critiques of a judicial performance in years, the appellate judges said that Tien Dung Duong must be retried for a gangland shooting because of numerous inexcusable errors made at his 1999 trial by Mr. Justice John O'Driscoll of the Superior Court.
The appeal court described various errors -- which invariably favoured the Crown -- as "flagrant," "completely inadequate," "entirely unrealistic," and "an unusual example of an experienced trial judge ignoring the basic rules of evidence."
Judge O'Driscoll engaged in unseemly battling with defence counsel Jack Pinkofsky throughout the trial, said Mr. Justice Jean-Marc Labrosse, Madam Justice Karen Weiler and Mr. Justice Robert Sharpe.
"Although cautioned numerous times, defence counsel was frequently difficult, argumentative, verbose, repetitive, self-righteous and even insufferable. On the other hand, the trial judge was dismissive, mocking and critical of the defence and, at a personal level, showed discourtesy and sarcasm."
The appeal judges described three particular occasions on which Mr. Pinkofsky unfurled a picture of the Goddess of Justice in an attempt to impress on the jury his belief that they should rise above the unfairness of the trial and acquit his client.
Judge O'Driscoll struck back in his charge to the jury, saying: "It is true that the Goddess of Justice is always portrayed as being blindfolded to symbolize equal justice to every person. However, may I remind you that the Goddess of Justice is never portrayed as being stupid."
Known within the defence bar as "the hangin' judge," Judge O'Driscoll's charge to the jury in the high-profile Robert Baltovich murder trial was found to be so inflammatory and prejudicial that the appeal court ordered a retrial.
In the Duong trial, Crown counsel Calvin Barry contended that the defendant hunted down several men he felt had wronged him on Dec. 17, 1995. The men were shot with a semi-automatic rifle while they stood smoking outside a Chinese restaurant in downtown Toronto. Two were injured and the third victim died.
The Crown's chief witness, Chuong Van Chu, behaved strangely in the witness box, laughing inappropriately, covering his face at times, and lapsing into odd silences. After identifying Mr. Duong as the shooter and providing the Crown with the evidence it needed, Mr. Chu suddenly refused to answer any further questions once Mr. Pinkofsky began his cross-examination.
For the next four days, Mr. Pinkofsky asked one question after another, but Mr. Chu refused to respond.
Mr. Duong's appellate counsel, James Lockyer and Leslie Maunder, contended that by allowing the jury to consider Mr. Chu's evidence, the defence had been deprived of its basic rights.
The appeal judge agreed. It said that Judge O'Driscoll was utterly wrong to rule the evidence admissible -- and even more wrong to tell the jury that, in his personal opinion, Mr. Chu had fallen silent because he was frightened of Mr. Duong.
The court also remarked that Mr. Barry must also share the blame with Judge O'Driscoll for another line of highly prejudicial hearsay evidence, which was introduced in obvious violation of standard rules of evidence.
