COURT OF APPEAL FOR ONTARIO

DATE: 20001117

DOCKET: C28286

RE: HER MAJESTY THE QUEEN (Respondent) v. DAVID SEELEY (Appellant)

BEFORE: OSBORNE A.C.J.O., MOLDAVER and GOUDGE JJ.A.

COUNSEL: M. David Zbarsky

for the appellant

Christine Bartlett-Hughes

for the respondent

HEARD: November 14, 2000

On appeal from the conviction imposed by Justice John R. Jennings on June 20, 1997.

E N D O R S E M E N T

[1] The appellant submits that the verdict is unreasonable in light of the factors set out in paragraph 86 of his factum. While we accept that there were a number of inconsistencies and frailties in the Crown’s case, we are not persuaded that the verdict was unreasonable.

[2] The appellant also seeks to admit fresh evidence. In summary form, the evidence consisted of telephone conversations between the appellant and the complainant, recorded after the appellant’s conviction. The complainant was not aware of the fact that these conversations were being recorded. In those conversations, both explicitly and by inference, the complainant admitted that her trial testimony about being sexually assaulted by the appellant was false.

[3] Having reviewed the entirety of the fresh evidence, we cannot conclude that the complainant’s recorded recantation is false. Thus, as the Crown concedes, the fourth Palmer requirement is met at least in the sense that the fresh evidence may, when taken with other evidence, raise a reasonable doubt of the appellant’s guilt. In the circumstances, therefore, we think that the fresh evidence is admissible. That being the case, there must be a new trial.

[4] The appeal is therefore, allowed, the conviction set aside, and a new trial directed.

“C.A. Osborne A.C.J.O.”

“M.J. Moldaver J.A.”

“S.T. Goudge J.A.”