COURT OF APPEAL FOR ONTARIO

DATE: 20001103

DOCKET: C29629

RE: HER MAJESTY THE QUEEN (Respondent)

v. DAVID HUNTER (Applicant/Appellant)

BEFORE: MCMURTRY C.J.O., CHARRON AND MACPHERSON JJ.A.

COUNSEL: Timothy Breen

For the appellant

Christine Tier

For the respondent

HEARD: November 1, 2000

On appeal from the conviction imposed by Justice Rick Libman, without a jury, on June 5, 1997.

E N D O R S E M E N T

[1] This is an appeal from the decision of Libman J. dated June 5, 1997 in which he convicted the appellant of sexual assault. On August 20, 1997 the trial judge imposed a sentence of imprisonment of two years less a day. The appellant appeals only his conviction.

[2] The appellant contends that the trial judge misapprehended material evidence, as a consequence of which the finding of guilt was unreasonable. He relies on three components of the evidence and the trial judge’s reasons to support his position.

[3] First, the appellant contends that the trial judge misapprehended the significance of the complainant’s statement to the police the day after the incident. We disagree. It is apparent from his reasons that he considered this evidence. He did not see this evidence as having a negative impact on the complainant’s credibility. He was clearly within his purview to reach such a conclusion. Moreover, we do not view the trial judge’s use of the words “by not shouting out” as being inaccurate when her statement is viewed in the context of her entire evidence.

[4] Second, the appellant contends that the trial judge was wrong to accept Mr. Moritz’s evidence as being generally credible, but to reject it when it conflicted with the complainant’s evidence about a prior incident involving the appellant and the complainant.

[5] We disagree. The trial judge was entitled to reject the portion of the testimony of an otherwise believable witness when it conflicted with the testimony of another credible witness, in this case the complainant.

[6] Third, the appellant submits that the trial judge failed to give sufficient weight to a potential motivation for the complainant to lie about the alleged sexual assault – namely, her blaming of the appellant for the fact that her job in the café would not continue after the completion of her co-op placement.

[7] Again, we disagree. On this issue the trial judge considered in detail the testimony of both the complainant and the appellant. For reasons which he set out clearly, he rejected the appellant’s evidence about the complainant’s motivation to lie about him. We cannot say that the trial judge’s consideration of this evidence was flawed. Indeed, his reasons for rejecting the appellant’s testimony are persuasive.

[8] In summary, we do not think that the trial judge misapprehended material evidence. Nor can we conclude that the finding of guilt was unreasonable. Accordingly, the appeal is dismissed.

(signed) “R. McMurtry C.J.O.”

(signed) “L. Charron J.A.”

(signed) “J.C. MacPherson J.A.”