R. v. Cornish, 2013 ONCA 583

ENDORSEMENT

1The appellant appeals his convictions for aggravated assault, forcible confinement and breaking and entering. He relies primarily on two pieces of fresh evidence. Alternatively, he asserts ineffective assistance by trial counsel.

2The fresh expert evidence the appellant relies upon does persuade us that the blood pattern on the inside screen door, which was confirmed to be the appellant’s blood, could not have been caused by him being hit by a baseball bat, as asserted at trial. The fact remains, however, that his blood was found on the inside of the screen door and inside the house. His thumb and palm prints were found on the outside of the front wooden door, just below the broken glass window. His fingerprints were found on the inside of the door in a pattern and location indicating that his fingers had curled over the frame when there were broken shards of glass still protruding, thereby explaining why his blood was found on the screen door and in the house. In light of the evidence that there was no damage to the door before the attack on the victim, and that the appellant had never before been to the premises, the blood and prints provided ample evidence to conclude that he participated in the break-in at the victim’s house and was a party to the offences.

3The second piece of fresh evidence, and the assertion of ineffective representation, relate to the alleged height disparity between the appellant and the description of the intruder who was hit by the baseball bat. This evidence was obviously available at trial, and the failure to adduce evidence or to conduct further cross-examination was the result of a deliberate and reasonable tactical decision by very experienced trial counsel. Nor was the evidence likely to have affected the result at trial, as the difference between the description of the intruder and the appellant was manifest.

4We would therefore dismiss the application to adduce fresh evidence and dismiss the appeal.