DATE: 20021104 DOCKET: C35338

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– MARK ANTHONY WAINWRIGHT (Appellant)

BEFORE: LASKIN, MOLDAVER and MacPHERSON JJ.A.

COUNSEL: Tamara Duncan, for the appellant Christine Tier, for the respondent

HEARD: October 29, 2002

RELEASED ORALLY: October 29, 2002

On appeal from the conviction imposed by Justice Maryka Omatsu of the Ontario Court of Justice dated June 2, 1999.

E N D O R S E M E N T

[1] The Crown agrees that the trial judge misapprehended an important piece of evidence given by the appellant, which may have affected her assessment of his credibility. Thus, the Crown acknowledges that the appellant is entitled to a new trial.

[2] The appellant, however, urges that the verdict is unreasonable. The conviction for aggravated assault would be unreasonable if the appellant, in self-defence, hit the complainant with the hammer after the complainant threatened him with a knife. But the complainant testified that the appellant hit him before the threat with the knife. Even though the trial judge disbelieved the complainant on other parts of his evidence, it would be open to a trier of fact properly instructed to accept the complainant’s evidence on the sequence of events.

[3] Therefore, we are not persuaded that the conviction for aggravated assault is unreasonable.

[4] Accordingly, the conviction is quashed and a new trial is ordered. Although whether to proceed with a new trial is a matter of prosecutorial discretion, we would expect the Crown to consider in exercising that discretion the frailties in the complainant’s evidence and that the appellant has served his sentence.

Signed: “John Laskin J.A.” “M. J. Moldaver J.A.” “J. C. MacPherson J.A.”