DATE: 20060803

DOCKET: C43836

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHRISTOS GEORGANTOPOULOS (Appellant)

BEFORE:

SIMMONS, ARMSTRONG and ROULEAU JJ.A.

COUNSEL:

Michael Davies

for the appellant

Debbie Calderwood

for the respondent

HEARD & RELEASED ORALLY:

July 28, 2006

On appeal from the October 10, 2004 decision of Justice Roydon J. Kealey dismissing the summary conviction appeal from the finding of guilt entered by Justice Beaman of the Ontario Court of Justice on December 5, 2002.

E N D O R S E M E N T

[1] The appellant was found guilty by Justice Beaman of the Ontario Court of Justice of two counts of assault and two counts of uttering threats against his wife. His conviction appeal was dismissed by the summary conviction appeal court judge although his sentence appeal was allowed varying the sentence to a conditional discharge. The appellant now seeks leave to appeal his finding of guilt and, if granted, appeals to this court.

[2] The appellant submits that the summary conviction appeal court judge erred in law by failing to find that the trial judge had misapprehended or failed to consider critical evidence to the detriment of the appellant.

[3] The appellant argues, in effect, that several pieces of evidence must have been ignored or misunderstood by the trial judge for her to have found him guilty. Specifically, the appellant says that the trial judge accepted evidence of discreditable conduct but did not consider evidence of witnesses other than the complainant that conflicted with the complainant’s description of various incidents and of her relationship with the appellant. Further, the appellant argues that the trial judge misapprehended the evidence in failing to appreciate the importance of the numerous inconsistencies in the complainant’s evidence as well as the fact that the complainant had a motive to fabricate.

[4] Although the issues raised relate essentially to findings of fact, the appellant’s position in this court is that the trial judgment is unreasonable and, as a result, the summary conviction appeal court judge’s failure to allow the appeal was an error of law. The appellant submits that the summary conviction appeal court judge ought to have found that the trial judge misapprehended the evidence and ought to have allowed the appeal.

[5] The Crown argues in its factum and submissions that this case essentially turned on the assessment of the complainant’s credibility. The appellant did not testify at trial and, as a result, the complainant’s evidence was essentially uncontroverted. It is apparent from the trial judge’s reasons that she considered all of the inconsistencies in the complainant’s evidence and was alive to the suggestion that the complainant may have reason to fabricate evidence. The trial judge’s finding that the complainant was credible and the trial judge’s acceptance of the complainant’s evidence are to be afforded deference. Once accepted, this evidence, together with the balance of the record provided ample support for a finding of guilt on all four counts.

[6] The Crown also argues that the reasons of the trial judge are thorough and her failure to address in her reasons every piece of evidence led over the course of this five-day trial does not constitute an error. Read as a whole, the reasons indicate that she properly assessed the evidence that was led at trial.

[7] We agree with the position of the Crown and find no basis to interfere with the judgment on appeal. As stated by the summary conviction appeal court judge:

The trial judge gave detailed reasons for her decision, some twenty-five pages in length. The charges before her arose in the context of domestic relations with the complainant wife and the accused husband. From the record, it is exceedingly clear that the trial judge properly admitted and utilized the evidence of prior disreputable conduct, was alive to the inconsistencies in the complainant’s testimony, some of which she discussed in her reasons and appears to have dealt with the issue of ‘animus’ as presented at trial.

Despite the able argument of counsel for the appellant, there is no basis for concluding that the evidence at trial was not reasonably capable of supporting the trial judge’s determination of the offences she tried. Furthermore, in a case such as this where credibility is a key factor in the prosecution, great deference must be accorded to the trier.

[8] In conclusion, therefore, leave to appeal is granted but the appeal is dismissed.

“J. Simmons J.A.”

“R.P. Armstrong J.A.”

“Paul Rouleau J.A.”