DATE: 20010219

DOCKET: C33272

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. MAYURES ALAGENDRA (Appellant)

BEFORE: ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL: Peter J. Connelly For the appellant

Alison Hurst For the respondent

HEARD: January 29, 2001

E N D O R S E M E N T

On appeal from conviction by Justice Hugh Locke dated October 4, 1999 and from sentence dated November 26, 1999.

[1] The appellant was convicted of aggravated assault and sentenced to imprisonment for two years less one day. He appeals from conviction and sentence.

Conviction Appeal

[2] The appellant's primary ground of appeal is that the trial judge erred in failing to give adequate or any consideration to certain evidence that lent support to his position that he was an innocent by-stander and not the person who assaulted the victim with a machete.

[3] Beginning with the testimony of Nelson Verissimo and Rui Melo, two eye-witnesses called by the Crown, we are not persuaded that the trial judge erred in his approach to their evidence. In particular, we reject the appellant's submission that to the extent their evidence may have lent support to his "innocent by-stander" explanation, the trial judge was required to take it into account in deciding whether it, along with the other evidence, raised a reasonable doubt about the appellant's identity as the perpetrator. Viewed objectively, the identification evidence given by these two witnesses suffered from many frailties and it was highly unreliable. In the final analysis, their testimony was of little assistance to either the Crown or the defence and the trial judge was justified in giving no effect to it in his assessment of the identity issue.

[4] Likewise, we reject the appellant's submission that the trial judge erred in giving little or no weight to the evidence of the defence medical expert, Dr. Duic. In addition to offering an opinion about matters beyond the scope of his expertise, the doctor conceded, in cross examination, that he had based his opinion as to the nature and cause of the appellant's injuries solely on the incomplete, if not inaccurate, information provided to him by the appellant. The value of his opinion was also compromised by the fact that he did not conduct a physical examination of the appellant but instead, viewed photographs of his injuries. Dr. Duic conceded that given the appellant's skin colour, if bruising did exist around the puncture wounds visible on the appellant's chest, it might be difficult to detect from photographs. Finally, he conceded that the injuries to the appellant's chest were consistent with his having been struck by a sharp-edged rock. This, of course, accorded with the Crown's theory. In the circumstances, the trial judge was justified in finding Dr. Duic's evidence to be of marginal assistance.

[5] Lastly, the appellant takes issue with the trial judge's failure to mention the evidence of his mother, Sunthari Alagendra, particularly as it related to his prior consistent statement concerning the cause of his injuries. Although it might have been preferable had the trial judge referred to Mrs. Alagendra's evidence, he was not required to do so. This court's decision in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 makes it clear the trial judges are not obliged to refer to and reconcile every piece of evidence that might be helpful to the defence.

[6] Having reviewed Mrs. Alagendra's evidence, it is apparent that she had difficulty remembering, with any degree of certainty, what it was that the appellant told her about the cause of his injuries. Moreover, what she did remember was not entirely at odds with the Crown's theory that the appellant had been struck with a rock thrown by Mr. Pereira. In fairness, she did recall him saying that his injuries were predominately caused by a hockey stick that might have had nails protruding from it. To that extent, her evidence lent some support to the appellant's evidence at trial and tended to rebut the Crown's suggestion of recent fabrication.

[7] Against this, however, the trial judge had before him the appellant's statement to the police, made several days later, in which he told the investigating officer that he had been felled by a rock delivered with considerable force and that he had also been hit in the head (not the chest) by a hockey stick.

[8] At trial, the appellant downplayed the significance of the rock, stating instead that he had fallen to the ground and been rendered semi-conscious after receiving a blow from a hockey stick, delivered to his head with such force that the stick broke in two. According to the appellant and his mother, this massive blow resulted in some slight swelling to the back of his head.

[9] As is apparent from his reasons at pp. 426 and 427, the trial judge rejected the appellant's testimony about being struck over the head with a hockey stick:

In cross-examination he stated that the hockey stick landed on his head with sufficient force to cause the stick to break in two, and he demonstrated the way the person who struck him wielded the stick. From his own physical demonstration in the courtroom enacted before me, the only possible description to be taken is that the accused demonstrated first a left-handed type of golf swing, and then he corrected that to a right-handed type of golf swing, presumably so that the result would be compatible with the stick hitting the right side of his head. In my view, his demonstration of how he purportedly was struck by the hockey stick is a very unlikely one. In addition, the violent force that he described, causing the stick to break, appears to have left only what I find was a very light swelling, if there was any at all, to his head. I disbelieve his evidence in that regard.

[10] In our view, it was open for the trial judge to conclude, as he did, that the appellant's testimony concerning the hockey stick was incredible and unworthy of belief. That being so, the appellant can gain little comfort from the fact that he told the same incredible story to his mother. It follows in our view, that the trial judge's failure to mention Ms. Alagendra's evidence was, in the circumstances, inconsequential.

[11] The only other ground of appeal raised by the appellant is that the trial judge erred in relying primarily on the evidence of Carlos Pereira to support a conviction. Specifically, he submits that the trial judge failed to consider frailties in Mr. Pereira's evidence that undermined the reliability of his identification evidence.

[12] We see no merit in this submission. Mr. Pereira offered an explanation for discrepancies in his description of the appellant and the trial judge was obviously satisfied that despite these discrepancies, his evidence was both credible and reliable. Significantly, the trial judge found confirmation for Mr. Pereira's evidence in the appellant's statement to the police. In our view, that finding was available to the trial judge and it more than adequately overcame any discrepancies in Mr. Pereira's description of the appellant.

[13] For these reasons, we would dismiss the appeal from conviction.

Sentence Appeal

[14] The appellant received a reformatory sentence of two years less one day. He submits that having regard to his age (21 at the time), background and prospects for rehabilitation, including his attendance at Guelph University, the sentence was manifestly unfit. We disagree.

[15] This was a very serious crime. It was racially motivated, unprovoked and gang-related. The appellant caused serious and lasting injuries to the victim. But for the defensive measures taken by the victim, the injuries might well have been fatal.

[16] In the circumstances, although the sentence is admittedly at the high end of the range, we are not persuaded that it is manifestly excessive.

[17] Accordingly, we would grant leave to appeal the sentence but dismiss the appeal.

Signed: "Marc Rosenberg J.A."

"M.J. Moldaver J.A."

"S. T. Goudge J.A."