DATE: 20050503

DOCKET: C42207

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES DUNPHY (Appellant)

BEFORE:

MCMURTRY C.J.O., LASKIN and MACPHERSON JJ.A.

COUNSEL:

Paul Calarco

for the appellant

Ian Scott

for the respondent

HEARD & ENDORSED:

May 2, 2005

On appeal from the conviction entered on March 23, 2004 and the sentence imposed on March 30, 2004 by Justice John F. Hamilton of the Superior Court of Justice, sitting alone.

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 his conviction on three grounds.

[2] We do not agree that the trial judge failed to distinguish between the credibility and the reliability of the complainant’s testimony. The trial judge dealt with both and was entitled to accept the complainant’s testimony that she saw a gun during the store incident.

[3] We do not accept that the trial judge ignored relevant evidence, specifically the appellant’s statement to the police when he was arrested to the effect that he stole the jewellery but did not use an imitation gun. The trial judge referred to this statement. Moreover, he thoroughly rejected the appellant’s testimony.

[4] We do agree that there were improprieties in the Crown cross‑examination of the appellant, especially the questions relating to the appellant’s knowledge of the law. However, we do not think that in a judge alone trial they cast serious doubt on the trial judge’s decision, especially since it was anchored principally in acceptance of the complainant’s testimony. Moreover, in our view the improprieties were not of such magnitude that they destroyed the appearance of a fair trial.

[5] The sentence appeal does not arise in light of the disposition of the conviction appeal.

[6] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.