- DATE: 20021009 DOCKET: C32505
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. ANTHONY ROACH (Appellant)
BEFORE: DOHERTY, AUSTIN and ARMSTRONG JJ.A.
COUNSEL: Stephen Wilks for the appellant
Sandra Kingston for the respondent
HEARD: October 2, 2002
RELEASED ORALLY: October 2, 2002
On appeal from the conviction entered by Justice John F. Hamilton, sitting with a jury, on June 7, 1999 and the sentence imposed on June 18, 1999.
E N D O R S E M E N T
[1] The trial judge was wrong to admit the videotaped statement of the witness, Sherry, for the truth of its contents. He failed to give any consideration to the absence of the ability to effectively cross-examine Sherry on the contents of the statement. Sherry testified at the trial, but repeatedly said he did not remember anything about the incident or the statement. The trial judge also erroneously diminished the significance of the absence of an oath or its equivalent when the statement was taken. The trial judge also erred in considering evidence given by other witnesses, and an ambivalent subsequent confirmation of the truth of the statement by the witness, Sherry, as enhancing the reliability of that statement. Reliability in this sense looks to the circumstances in which the statement was made.
[2] We are, however, satisfied that this is an appropriate case in which to apply the proviso. Crown counsel has demonstrated that this case was overwhelming. The evidence clearly established that the appellant was at the scene when the robbery and assault occurred. He was close enough to the victim to get the victim’s blood on his shoe. Two eyewitnesses who watched the assault testified that three persons were at the scene of the assault in addition to the victim and that all three were involved in the assault. The appellant was caught fleeing the scene of the assault immediately following the assault with one of the other assailants. In our view, no reasonable jury, properly instructed, could have any doubt that the appellant was involved in the robbery and not merely present at the scene of the robbery.
[3] The appeal is dismissed.
“Doherty J.A.”
“Austin J.A.”
“Robert P. Armstrong J.A.”