Court of Appeal

CASE NO.                                     VOL. NO.                                            PAGE

LOWELL ARNOLD CAMPBELL                                                 HER MAJESTY THE QUEEN

and THOMAS BARRETT

                                                                         - and -                                                                        

(Appellants)                                                                                                                (Respondent)

CAC 154191                                            Halifax, N.S.                                       BATEMAN, J.A.

CAC 154251

                                           [Cite as: R. v. Barrett , 2000 NSCA 76]

APPEAL HEARD:                                 May 26, 2000

JUDGMENT DELIVERED:                 June 8, 2000

SUBJECT:         Fresh evidence; unreasonable verdict; sentencing

SUMMARY:      The appellants Barrett and Campbell were convicted of robbing a convenience store.  A lone, masked gunman had robbed the store and shot the clerk.  Mr. Barrett was charged with wearing a mask while committing an indictable offence, it being the Crown’s theory that he, of the two, had been the gunman.  The jury acquitted Barrett of the masking charge.  The significant crown witnesses were unsavory characters about whose evidence the judge gave a Vetrovec warning.  The principle witness was a Mr. Ogley who testified that he was not a party but drove the two accused to the convenience store where they committed the robbery.  The other witness testified that he provided Mr. Campbell with the gun.  Neither accused testified at trial.  The appellants asked the court to receive fresh evidence (alibi) on the appeal.  It was primarily the evidence of a Mr. Steele who had seen the  two accused at the local Tim Horton’s shop on the night of the robbery.  The appellants submitted that they could not have committed the robbery and attended at Tim Horton’s at the time that they were seen there by Mr. Steele

The appellants submitted, in any event, that the verdicts were unreasonable due, inter alia, to the unreliability of the Crown witnesses and because the acquittal of Mr. Barrett on the masking charge was inconsistent with his conviction on robbery.

ISSUES:              Should the fresh evidence be received?  Were the verdicts inconsistent?

RESULT:            The fresh evidence did not meet the fourth Palmer criteria and should not be received.  The verdicts were not inconsistent at law nor otherwise unreasonable.  The sentences were not manifestly excessive.  Appeals dismissed.