本帖最后由 唐炜臻 于 2015-12-24 12:00 编辑
唐炜臻：我是怎么“犯罪”的。唐炜臻，我发现和发明了1% 的庄家思想和理论，有了连续回报的方式，我始终把投资人的利益放在首位，吸引了大量的投资人，开始成气候，我全心全意为人民服务，为社区服务，我想成为庄家为投资人谋利益，在金融市场有一席之地，说话的权利，为华人争光，阻止华尔街的欺诈与剥削，战胜邪恶的资本主义。我始终不明白我怎么犯罪的，我从不犯罪，从来没想要犯罪，后来发现我的知名度高，太出名，我没有律师，我被司法欺骗成了犯人，后来，我自己研究法律发现我变成了一个名副其实的假罪犯。
PART I : STATEMENT OF THE CASE
1. The Applicant, Weizhen Tang was charged with fraud and convicted before judge and jury on October 30th, 2012. 2. The Applicant had no counsel at the preliminary hearing, trial or in the Court of Appeal, serve for Duty Counsel at the Court of Appeal on the issue ofconviction alone. - Affidavit of Applicant 3. The applicant had applied for state funded counsel throughout the process but he was denied this request. - Affidavit of the Applicant. 4. The transcript of the preliminary hearingdiscloses that the Applicant repeatedly raised the issue that he needed alawyer as he did not know how to ask questions and did not have legal knowledge. - Affidavit of Applicant 5. TheApplicant was committed for trial and was from time to time assisted by AmicusCuriea at trial. - Affidavit of Applicant. 6. TheApplicant alleges that Amicus Curiea was incompetent and ineffective as welland deals at length with this aspect of the case. The Amicus missed theopportunity to advise the applicant to bring a number of crucial motions andapplications; Amicus did not fully grasp the theory or evidence of the defence;the Amicus did not challenge the qualifications of the crown expert despitebeing informed by the Applicant that the expert was at best a mere accountantbut not a forensic expert, if he was a forensic expert, he was still not anfinancial investment expert; the Amicus discouraged, in fact advised theApplicant not to call character witnesses; the closing address did not fullyexplore the issue of mens rea andmany other omissions or commissions. - Affidavit of the Applicant. 7. Theapplicant alleges that no one seems to have read the preliminary hearingtranscript which disclosed that he could not do the trial competently withoutthe appointment of counsel, courts above assumed he had competentlycross-examined witnesses when that was not the case or courts assumed hedeliberately did not challenge the qualifications of the expert witness. - Affidavit of the Applicant. 8. TheApplicant is seeking leave to introduce new evidence on this leave application. 9. TheApplicant also seeks the appointment of counsel to perfect this leaveapplication. 10. The Applicant also seeks an orderfrom the court for the provision of the Court of Appeal Record in this leaveapplication. - Affidavit of Applicant. 10. TheApplicant is on welfare and cannot afford to retain counsel or pay for thetranscripts. - Affidavit of Applicant. 11. TheApplicant is self represented on this leave to introduce fresh evidence.
PARTII -ISSUES AND THE LAW 12. Itis submitted that the Applicant was denied his right to a fair trial because hewas denied counsel, was self-represented and this self-representation wasincompetent and ineffective, resulting in a miscarriage of justice.
14. Itis submitted that further that the Amicus Curiea who assisted him from time totime during the trial, was incompetent and ineffective, leading to a furthermiscarriage of justice.
15. An accused in a complicated criminaltrial with serious consequences that has retained counsel is entitled to theeffective and competent assistance of that counsel. The standard should be no less if the accused isself-represented or is assisted by Amicus Curiea. In this case the Applicantwas self-represented. Amicus was appointed to ensure the applicant got someassistance. The conduct and assistance of Amicus should not be of a lesserstandard than that of any counsel or counsel representing the accused. Ifanything it must be more subject to scrutiny because Amicus was appointed inrecognition of the fact that the accused person has no legal representation. - R. v. Silvini(1991), 68 CCC (3d) 251 16. Ineffective representation can becast as either: (i) a Charter violation pursuant to subsection 24(1) of the Charter or (ii) a miscarriage ofJustice pursuant to s. 686 of theCriminal Code. There is no need to frame the issue as aCharter issue pursuant to a breach of ss. 7 & 11(d) of the Charter. In Garofoli(1988) 41 CCC (3d) 97 at 152 Martin J. A. stated:
Ishould add that, apart altogether from constitutional considerations, if, inany case, the court considered that there was a real possibility that amiscarriage of justice had occurred due to the flagrant incompetency of counselwe would be entitled to intervene under s. 613(1)(a)(iii) of the code.
Section613 (now 686) reads as follows:
686. (1) On the hearing of an appeal against a conviction [...], thecourt of appeal
(a) may allow the appeal where it is of the opinion that ... (iii) on any ground that there was a miscarriage of justice
- R. v. Garofoli (1988), 41 C.C.C. (3d) 97
17. Counsel’s performance is to bemeasured against a standard of reasonableness, assessed objectively. Strategic or tactical considerations will begiven considerable deference to trial counsel. Each case is to be decided on the facts. Here the Applicant wasself-represented and was clearly incompetent as was Amicus Curiea who wasn’this counsel but was there to assist in any case. 18. In R. v. Joanisse (1995) 102 C.C.C. (3d) 35 (OCA) and R. v. White (1997) 114 CCC (3d) 225(OCA), the court decided that the steps to establish ineffectiveness of counselare:
1) The appellant must establish the factson which the claim of incompetence is based. The appellant must prove on the balance of probabilities the allegedacts or omissions of trial counsel. Whenthe claim of incompetence is first raised, appellate court will receive freshevidence supporting the factual foundation of the claim. Additional information should include (ineither affidavit or transcript of oral evidence) trial counsel’s explanationfor the alleged deficiencies.
2) The appellant must establish that therepresentation provided by trial counsel was incompetent. Appellant must show that acts/omissions oftrial counsel were unreasonable and fell below existing professional standardsof reasonable skill and judgment (see Rules of Professional Conduct)
3) The appellant must establish that theincompetent representation resulted in a miscarriage of justice. An appellant establishes prejudice by showingthat there is a reasonable probability the verdict would have been different iftrial counsel had not been incompetent.
- R. v. Joanisse (1995), 102C.C.C. (3d) 35 - R. v. White (1997), 114 C.C.C. (3d) 225
19. In Garofoli Martin J.A. said at pp. 151-2 (quoted with approval in R. v. Sauve (1997) 121 C.C.C. (3d) 225(B.C. C.A.):
“...wherethe defendant alleges that the incompetence of counsel deprived him of theeffective assistance of counsel, the defendant must show, in addition to thelack of competence on the part of defense counsel, that there is a reasonableprobability that, but for counsel’s unprofessional errors, the result of thetrial would have been different. In Stricklandv. Washington, 104 S. Ct. 2052 (1984), Justice O’Connor, delivering theopinion of the Court, said at p. 2064:
‘aconvicted defendant’s claim that counsel’s assistance was so defective as torequire reversal of a conviction or death sentence has two components. First, the defendant must show thatcounsel’s performance was deficient. This requires showing that counsel made errors so serious that counselwas not functioning as the “counsel” guaranteed the defendant by the SixthAmendment. Second, the defendant mustshow that the deficient performance prejudiced the defense. This requires showing that counsel’s errorswere so serious as to deprive the defendant of a fair trial, a trial whoseresult is reliable. Unless a defendantmakes both showings, it cannot be said that the conviction or death sentenceresults from a breakdown in the adversary process that renders the resultunreliable.’ (Emphasis[of Macfarlane J.A.]) . . . . “Shealso said at p.2068"
‘...Thedefendant must show that there is a reasonable probability that, but forcounsel’s unprofessional errors, the result of the proceeding would have beendifferent. A reasonable probability is aprobability sufficient to undermine confidence in the outcome. (Emphasis[of Macfarlane J.A.])
“Theprinciple set forth in Strickland v. Washington, supra, can usefully be appliedin this jurisdiction.”
- Garofoli supra.
20. In Joanisse, J.A. Doherty states at p.64 that “ a reasonableprobability lies somewhere between a mere possibility and a likelihood.” - Joanisse supra - R. v. Sauve(1997), 121 C.C.C. (3d) 225 21. In R. v. B. (L.C.) (1996) 104 CCC (3d) 353 (O.C.A.), the court alsoquoted from Strickland above at p.2066: A convicted defendant making a claim ofineffective assistance must identify the acts or omissions of counsel that arealleged not to have been the result of reasonable professional judgment. The court must then determine whether, inlight of all the circumstances, the identified acts or omissions were outsidethe wide range of professionally competent assistance. In making that determination, the courtshould keep in mind that counsel’s function, as elaborated in prevailingprofessional norms, is to make the adversarial testing process work in theparticular case. At the same time, thecourt should recognize that counsel is strongly presumed to have renderedadequate assistance and made all significant decisions in the exercise ofreasonable professional judgment.
- R. v. B(L.C.) (1996), 104 C.C.C. (3d)353
22. The deference to be shown in anexamination of counsel’s performance referred to in R. v. Kelly (1992) 15 W.C.B. (2d) 254 (O.C.A.) where Doherty J.A.said (quoted with approval in Strauss(1995) 100 C.C.C. (3d) 303 (B.C. C.A.)):
The incompetence oftrial counsel can afford a ground of appeal. It is, however, one which should be raised only after the most carefulconsideration. There is a strongpresumption that trial counsel perform adequately and the onus rests on theappellant to demonstrate that counsel’s conduct fell below the standard ofcompetence.
- R. v. Kelly(1992), 15 W.C.B. (2d) 254
23. In R. v. Joanisse (1995) 102 CCC (3d) at62 (OCA); the court reasoned that:
Counsel’s failure to meet competence standards doesnot automatically lead to a reversal of a conviction. The ultimate purpose of the appellate inquiryis not to grade counsel’s performance, but to determine whether a miscarriageof justice occurred...If counsel’s incompetence rendered the verdict unreliableor the process unfair, then the appellant has demonstrated that he receivedineffective assistance resulting in a denial of the right to a fair trial andmiscarriage of justice.
24. Itis submitted that the Applicant’s affidavit which constitutes new evidenceclearly establishes that the self-represented applicant was incompetent, and sowas Amicus. Amicus advised and discouragedthe applicant from calling character witnesses; Amicus did not advise theapplicant who couldn’t afford expert witnesses to call such witnesses despitebeing told categorically by the applicant that the applicant needed to callexpert witnesses; the Amicus did not advise the applicant on the variousmotions that could have been brought; the Amicus did not mention in his closingaddress despite being reminded by the applicant that the applicant was facingthe current financial tsunami which affected his operations like so manysimilar financial investment operations; the Amicus did not fully bring out thedefence of lack of mens rea; Amicus’s address to the jury started out almost like a caricature of the applicant;the Amicus did not assist the applicant in trying to have the video of February27, 2009 excluded from being admitted as it was more prejudicial thanprobative, in fact the amicus during pre-charge conference submitted that thatvideo should be entered for the truth of its contents in relation to what theapplicant was saying in the video and so many other omissions and commissions.
25. It is submitted that the combination ofboth the incompetence and ineffectiveness of the self represented applicant andAmicus, resulted in an unfair trial and therefore a miscarriage ofjustice. The Chief Justices of theSupreme Court of Canada and Ontario, as well as many other judges and formerChief Justice and Attorney General for Ontario, Honourable Roy MacMurtry havestated that self represented applicants are the face of new injustices inCanada or words to that effect that they present a new and intractable problemfor both the civil and criminal justicesystems. The issue of self represented applicants and the specific problemsthey pose is an issue of national importance.
| 
狗仔卡
发表于 2015-12-24 10:25:35
收藏
顶
踩
提升卡
置顶卡
沉默卡
喧嚣卡
变色卡
显身卡
楼主
