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Court of Appeal Decision (David Ryan) - Bob Buckingham Law

Court of Appeal Decision (David Ryan) - Bob Buckingham Law

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Bob Buckingham Law
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Published by: BuckinghamLaw on Feb 01, 2013
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Date: 20120216Docket: 07/47Citation:
 R. v. Ryan (D.)
, 2012 NLCA 9
Restriction on Publication:Pursuant to subsection 110(1)of the
Youth Criminal Justice Act 
 no person shall publish the nameof a young person, or any otherinformation related to a youngperson if it would identify theyoung person as having been dealtwith under the
Youth Criminal Justice Act 
BETWEEN:DAVID RYANAPPELLANTAND:HER MAJESTY THE QUEENRESPONDENTCoram: Green C.J.N.L., Rowe & Hoegg JJ.A.Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200601T1043Appeal Heard: September 16, 2010Judgment Rendered: February 16, 2012Reasons for Judgment by Green C.J.N.L.Concurred in by Hoegg J.A.Dissenting Reasons by Rowe J.A.Counsel for the Appellant: Bob BuckinghamCounsel for the Respondent: Vikas Khaladkar 
Page: 2
Green, C.J.N.L.:
Canada Day was not a time for celebration for those in the house of David Ryan on July 1, 2005. The events of that day and the previousevening resulted in the death of Richard Brace. Mr. Brace was severely beaten on several occasions in the course of a party where drugs and alcoholwere present. He subsequently died as a result of head injuries.[2]
Three people were ultimately charged, on separate indictments, withmurdering him. One, B.K., a young offender, was convicted of the includedoffence of manslaughter, following a three week trial at which he wasrepresented by counsel. The second, A.W, also represented by counsel, pleaded guilty to, and was convicted of, the included offence of manslaughter on an agreed statement of facts. The third, David Ryan, theappellant in this case, represented himself and was convicted of seconddegree murder following a fourteen week trial. He was sentenced to lifeimprisonment without eligibility for parole for sixteen years. The prosecution was represented by two counsel.[3]
Mr. Ryan now appeals his conviction. He raises issues relating to:lack of timely disclosure; failure of the trial judge to give a
cautionto the jury; inappropriate comments made by Crown counsel in her closingaddress to the jury; and the trial judge’s treatment of him as anunrepresented litigant and her management of the trial, including her failureto declare a mistrial even though Mr. Ryan did not seek, and actuallyopposed, such a declaration. He also submits that even if a mistrial shouldnot have been declared, the verdict was unreasonable and cannot besupported by the evidence.[4]
A common theme running through all of the submissions on appeal isthat Mr. Ryan, a man with limited formal education and representinghimself, was, although he did not fully appreciate it, in the words of hiscounsel “out of his depth” and could not properly conduct his own defence.[5]
 R. v. Harris
, 2009 SKCA 96, Richards J.A. observed that:
[27] … An accused who decides to proceed absent the assistance of a lawyer cannot, after the fact, attack a conviction on the basis that he or she did not haverepresentation as effective as what might have been provided by counsel. … Inother words, individuals who decide to represent themselves cannot have their cake and eat it too.
Page: 3[6]
This appeal engages, amongst other things, the broad question as towhether there are ever circumstances where it is appropriate for an appellatecourt facing a conviction appeal by a person, who insisted on representinghimself at trial, in circumstances where the trial judge observed that he wasincapable of properly representing himself, should attempt to save him fromthe consequences of his own folly, by ordering a new trial. I have concludedthat there are exceptional circumstances where the appellate court should soact and that this case is one of them.
The Trial
The trial lasted for fourteen weeks. Properly conducted, it need nothave taken that long. It was extended to that length primarily because of thedifficulties that resulted from Mr. Ryan’s decision to represent himself. Hisunfamiliarity with the court process and his apparent inability to acceptexplanations and instructions from the trial judge resulted in much wastedtime.[8]
In essence, the relevant events involved drinking and partying at Mr.Ryan’s house and that of a neighbour, Crystal Vokey, the day or so preceding July 1, 2005. The main protagonists present included Mr. Ryan,B.K. and his girlfriend Tamara White, and A.W., Richard Brace’s girlfriend.On June 30, B.K. was observed striking Brace at Vokey’s house. Later,when the group had returned to Mr. Ryan’s house, A.W. got into anargument with Mr. Brace, accusing him of infidelity. As a result, accordingto Tamara White, (the only eyewitness other than those who were charged),Mr. Brace was attacked in a bedroom on two occasions, being repeatedlystruck in the head with A.W. egging the attackers on. On a third occasionthat same evening, when A.W. accused Mr. Brace of stealing money fromher, he was again attacked.[9]
The following morning, Mr. Brace was found unconscious face downon the floor of his room. An ambulance was called and he was taken to thenearest hospital where he died a few days later.[10]
The only evidence at trial linking Mr. Ryan to the beating was theevidence of Tamara White who placed him, with others, in the bedroomwhere the beatings occurred. She testified that he threw some of the punches, but not as many as B.K. or as hard as those thrown by B.K. Other witnesses, including B.K. and A.W., did not place him in the room when the beatings occurred and did not confirm Tamara White’s evidence of striking.

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