Known Third Party Suspect & Circumstantial Evidence

scottk374
Feb 18
6 min read

Author: Tina Lerner

This blog will focus on the case of R v Biya (2018)^[i]. The case involves a known third-party suspect claim and the issue of circumstantial evidence. I will analyze how I believe that circumstantial evidence is a difficult task for judges to weigh, but the appeal processes are critical to our justice system.

Facts

In R v Biya^[ii], Abadula Biya appealed his conviction and sentence for the charges of unauthorized possession of a firearm, ammunition, possession of a Schedule I controlled substance for the purpose of trafficking, and possession of the proceeds of crime. Biya sought to appeal his case based on the trial judge’s decision to reject Biya’s defence based on the evidence of a known third-party suspect. Biya claimed the reasoning from the trial judge’s decision resulted in a miscarriage of justice.

The police saw Biya carrying a gym bag outside of a concert. They saw Biya meet two others, George-McCool and Moore. The group realized the police were watching them from afar, and they entered a vehicle. Biya and George-McCool sat in the front with Moore in the back seat holding the gym bag Biya was carrying. The police searched the group and found various drugs, a scale, money and a gun in Biya’s gym bag, along with personal items belonging to Biya. George-McCool and Biya were tried together, but Moore’s charges were dropped as Moore was only found with over a thousand dollars in cash on his person at the time of the incident.

At trial, Biya was convicted to four years in jail. The trial judge rejected Biya’s defence claim that Moore was a known third-party witness. The trial judge concluded that Moore would not have had enough time to stow his contraband in Biya’s gym bag. However, the Court of Appeal overturned the decision, citing that the trial judge materially misapprehended key evidence.

Issues

(1) Did the trial judge err in judgment in rejecting the known third-party suspect claim by Biya?

(2) Is circumstantial evidence too hard for a judge to decide?

Legal Concepts

Known Third-Party Suspect:

The test for a known third-party suspect defence was outlined in R v Grandinetti and stated the following:

“The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third-party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.”^[iii]Further, evidence will be allowed if the third-party suspect is in some way connected to the crime. In Biya’s case, Moore can be considered a known third-party suspect as he was the co-accused and at the scene of the crime.

Circumstantial Evidence:

According to R v Villaroman^[iv], “When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.” This was further expanded on in R v Al-Rawi^[v], the trial judge stated, “When the evidence is entirely circumstantial, the judge must again consider all of the evidence. If, after considering that evidence, the existence of the elements is the only reasonable or rational inference, the trier of fact should draw the inference that the elements, and hence guilt, have been established beyond a reasonable doubt. If there are other reasonable or rational explanations inconsistent with guilt, the inference must not be drawn and the accused acquitted.” In Biya, there was not only circumstantial evidence, but also a known third-party suspect claim that should have been considered together.

What was the evidence? What do we know?

We know that Moore had previous convictions for gun and drug trafficking offences. Moore was in the back seat of the vehicle, while the two accused were in the front seat. Moore was in the back seat for approximately one to two minutes with Biya’s gym bag. When Moore was searched by the police, they found over one thousand dollars in cash but no contraband. This was the impetus of Biya’s claim that Moore should be considered a known third-party suspect. Biya’s defence argued that Moore had done similar things before, and why would he not do it again, as the police were just about to search them? Moore knew he was in hot water with the police approaching the vehicle, so why would he not try to ditch the incriminating evidence?

What did the Trial Judge determine? How did they interpret the evidence?

The trial judge rejected Biya’s claim that Moore planted the contraband in Biya’s gym bag. The trial judge claimed that Moore would not have had enough time to plant the gun and drugs in the gym bag. Further, they claimed that Moore did not have the propensity or opportunity to do so.

How did the Trial Judge determine that there was insufficient time?

This is not exactly clear. The trial judge pointed out that Moore dismantled part of the gun before putting the other items in the gym and put it at the bottom of the gym bag. Overall, the trial judge did not expand on why they believed there was insufficient time.

What did the Court of Appeal Say?

The Court of Appeal believes there was a miscarriage of justice due to the trial judge’s misunderstanding and not considering the components of the evidence. Largely, the Court of Appeal explained there was a reasonable basis for Biya to claim that Moore had the propensity to hide the contraband in Biya’s gym bag, as Moore has several recent gun and drug trafficking convictions, which would satisfy the propensity requirement. Previous charges and convictions were held up in two cases, R v Arcangioli and R v Tomlinson^[vi]. Further, they referred to R v Villaroman, which stated “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.”^[vii] That is exactly what the Court of Appeal described as the trial judge’s apprehension of the evidence, pure speculation.

Critical Analysis

Reading the Biya case has propelled me to consider the slippery slope that is circumstantial evidence. According to R v Villaroman, the court explained that weighing circumstantial evidence is challenging, as identifying the distinction between a “plausible theory” and “speculation” is not easy^[viii]. I suggest this goes beyond making an educated guess, but it is still based on human bias and apprehension of what they are assessing. At the end of the day, the judge decides based on the inferences they draw from circumstantial evidence. However, I suggest the rules for circumstantial evidence act as safeguards, in that all evidence in totality must be weighed and considered beyond a reasonable doubt. Additionally, I believe the ability to appeal decisions in our justice system provides further safeguards that are important.

In Biya, the initial trial judge’s conviction of Biya was based on the inference of how much time would be required for Moore to store the contraband in Biya’s gym bag. Ultimately, that led to Biya’s conviction. I beg the question: how does a person know exactly how long it would take a person to do that? Personally, I do not frequently time myself doing random acts or tasks. In this situation, the judge is purely making an inference based on the general experience. Although the trial judge did not consider endorphins, as Moore knew the police were approaching them and would likely search them. This would likely have triggered Moore’s endorphins to act quickly and hide the contraband. Further, did Moore have any mobility issues that might not have made the circumstantial evidence plausible? Maybe. I suppose this is similar to using the “reasonable person” test or a “right-thinking member of society” that we use in other areas of law.

Overall, I find this task for judges to be challenging, in addition to other aspects of their position. Generally, I find that we are asking a lot. Judges need to make decisions on generalizations at times. Further, they are not mind readers and cannot go back in time. They have to make decisions based on what is in front of them. However, I do think that appeal processes provide safeguards for weighing circumstantial evidence.