Ontario Criminal



No basis to interfere with trial judge’s rejection of accused’s evidence

Accused appealed his conviction for aggravated assault and assault with weapon arising from incident outside bar. Eye injury to aggravated assault complainant could have been inflicted only by accused or by T. Not single witness said T was assailant. Complainant, whom trial judge found credible and whose evidence he accepted, said that though he had had confrontation with T both in and out of taxi, he was certain that T was not assailant. T denied that he was assailant and second complainant identified accused as assailant. Thus, evidence of three key witnesses in this case all pointed to accused as being assailant. Appeal dismissed. From reading trial judge’s reasons court was satisfied that he applied reasonable doubt standard to accused’s two statements. Trial judge rejected accused’s evidence in his police statements because of various inconsistencies he identified. Few of these inconsistencies seemed minor, but court agreed with Crown that on critical points, for example, when accused first saw blood and how fight unfolded, accused’s evidence changed significantly during course of his statements. Thus, court saw no basis to interfere with trial judge’s rejection of accused’s evidence. Trial judge could perhaps have said more about assault with weapon complainant’s evidence but these were oral reasons given after relatively short trial. Trial judge recognized that complainant was drunk but accepted that he could identify perpetrator of this horrific incident and did not err in his acceptance of complainant’s evidence. Similarly trial judge was entitled to accept T’s evidence which was consistent with first complainant’s evidence which trial judge believed.

R. v. Hockey (May. 26, 2015, Ont. C.A., John Laskin J.A., J. MacFarland J.A., and Paul Rouleau J.A., File No. CA C58248) 122 W.C.B. (2d) 526.

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