DATE: 20040407

DOCKET: C35009

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DEAN ANDREW SMITH (Applicant/Appellant)

BEFORE:

GOUDGE, MACPHERSON and CRONK JJ.A.

COUNSEL:

Nicholas A. Xynnis

for the appellant

Shawn Porter

for the respondent

HEARD:

April 2, 2004

On appeal from the convictions entered on October 1, 1999 and the sentence imposed on December 22, 1999 by Justice Frances P. Kiteley of the Superior Court of Justice, sitting with a jury.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant appeals from the convictions by Justice Kiteley, sitting with a jury, for sexual assault, sexual exploitation, gang sexual assault and forcible confinement.

[2] The trial judge’s decision to instruct the jury on the issue of DNA evidence and that they should carefully consider the review of that evidence in the closing addresses of counsel was done with the express consent of both counsel. Although a somewhat unusual way of dealing with the evidence, we cannot say that the exercise of discretion amounted to an error, particularly in light of the joint position of counsel, and given the acknowledged completeness and fairness of those addresses on this issue.

[3] In addressing some of the inferences that the Crown argued should be drawn, the trial judge did not review the parties’ competing theories of the case. Her instructions in this regard were not an improper exercises of her discretion.

[4] The appellant contends that the trial judge erred in refusing to declare a mistrial after Crown counsel in her opening address told the jury that the complainant had never had sex before the incident that gave rise to the charges. We disagree. The evidence of virginity was relevant to the complainant’s physical state, which in turn related to the ‘maiming’ or ‘wounding’ components of the charge of aggravated sexual assault. Moreover, the trial judge gave an appropriate caution against connecting the complainant’s virginity and her credibility.

[5] The appellant also contends that the Crown’s closing address was inflammatory and prejudicial. There is no basis for this submission. The Crown’s reference to “tears rolling down her face” when the complainant testified is far removed from being an inflammatory comment. It was simply an observation of fact.

[6] The appeal is dismissed.