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STORY:"Guilty verdict overturned after judge consults Google Street View," by reporter Zoe McKnight, published by the Toronto Star on March 23, 2015.
PHOTO CAPTION: "Soheil Ghaleenovee, who is accused of punching a woman in the face outside Toronto’s Muzik nightclub in 2011, gets a new trial after an Ontario judge investigated the alleged crime scene on his own accord."
GIST: "An Ontario judge who used Google Street View of his own accord while presiding over an assault case has had his guilty verdict overturned when an appeal determined the judge’s personal investigation prejudiced his decision. "“I have no doubt that the trial judge was conscientiously attempting to do his duty in conducting a search for the truth . . . Unfortunately, however, a reasonable observer would conclude that the fairness of the trial was compromised,” wrote Superior Court Justice Robert Goldstein in his decision last week to order a new trial. The trial judge, who was not identified in Goldstein’s March 17 decision, consulted the online technology that displays panoramic views of streets across the world during the trial of Soheil Ghaleenovee, who was charged with assault causing bodily harm following an incident outside Toronto’s Musik nightclub in December 2011.........The trial judge used Google Street View to pull up an image of the nightclub while Ghaleenovee’s friend Gott Chanthapathet was testifying as a witness, and questioned the man about the fence. The image was entered as an exhibit, though Ghaleenovee, who had already testified, was never questioned about it. The trial judge also concluded the cuts on the accused’s knuckles were consistent with tooth marks without seeking expert evidence. The trial judge relied in part on the image to find the accused guilty, according to an excerpt from the proceedings found in Goldstein’s decision. “He offers an explanation for how he got the cuts to his knuckles, but it does not seem very likely that he could have cut his hand on the fence in the way he described, or at all,” the trial judge said. “The fences in question are tubular, they have corners, but not the kind of corners that anybody could cut their hands on, particularly in the way described by Mr. Ghaleenovee . . .” Downloading the image from the Internet on his own accord, not putting the image to the accused and making observations without expert evidence all “compromised the appearance of fairness” and merited a new trial, Goldstein wrote. The case is a cautionary tale on why judges shouldn’t become involved in the prosecution of a case, said Toronto criminal defence lawyer Daniel Brown. Though judges are allowed what’s called judicial notice — a rule that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known it can’t reasonably be doubted — the trial judge in this scenario made leaps that weren’t supported by evidence and jeopardized the verdict, Brown said, noting that Street View images are often several years old. “By relying on Google Street View for the design of the fence, one thing we don’t know is when that photograph was taken and whether that accurately depicted how that fence looked at the time that this incident occurred.” Alan Young, a professor at Osgoode Hall Law School, said the ideal judge is a passive, neutral umpire. “Sometimes checking things out for yourself is irresistible, and it will happen, but the fatal flaw is when you overstep your boundary and become an investigator, like this judge did. “At a minimum, you have to put that evidence to both counsels, adjourn and give them opportunity to address it.” Like a jury, a judge must make a decision from the evidence presented by the Crown and the defence, not outside sources, said Mark Halfyard, an appellant lawyer in Toronto. “When there’s a specific piece of evidence that’s pivotal to the ruling, the judge shouldn’t be going on Google Maps or consulting any other source and then basically rebutting the defence’s argument about how these injuries were caused.” Peter Lindsay, the lawyer who represented Ghaleenovee at his appeal March 10, said the judge’s decision to use Google Street View was “highly unusual” and the timing of the Internet search — following his client’s testimony — was particularly problematic. Lindsay said his client, who has maintained his innocence since his arrest more than three years ago, welcomes the new trial if the Crown decides to prosecute him again. If they do, Lindsay expects an initial set date in a few weeks."
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