Court of Appeal for Ontario

Date: 2004-12-13

Docket: C40119

Re: Her Majesty the Queen (Respondent) v. Michael Rowe (Applicant/Appellant)

Before: Doherty, Laskin and Armstrong JJ.A.

Counsel: John Collins for the appellant Philip Perlmutter for the respondent

Heard & Endorsed: December 10, 2004

On appeal from the conviction entered by Justice N. McRae of the Superior Court of Justice on April 17, 2003 and the sentence imposed on May 7, 2003.

Appeal Book Endorsement

[1] We do not agree that the trial judge’s failure to refer to the evidence of two of the witnesses in his reasons demonstrates reversible error. The evidence of those two witnesses was far from central to the case.

[2] The trial judge cautioned himself in strong terms on accepting the evidence of Bemister. He chose to accept his evidence that the appellant was the person who assaulted his victim. We have been given no basis upon which to interfere with that finding.

[3] There is no merit to the claim that the defence should have been allowed to attempt to prove a prior inconsistent statement through a witness when the declarant of the statement was not confronted with that statement during his testimony.

[4] We would not interfere with the sentence. The attack was vicious and unprovoked. The victim suffered serious injuries and some permanent disability.

[5] The appeal is dismissed.