DATE: 20030930
DOCKET: C35501

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - SCOTT GREEN (Appellant)

BEFORE:

ABELLA, MOLDAVER and SHARPE JJ.A.

COUNSEL:

Richard Litkowski for the appellant

Christine Tier for the respondent

HEARD & ENDORSED:

SEPTEMBER 26, 2003

On appeal from the conviction by Justice Donald Macmillan of the Ontario Court of Justice on December 7, 1995.

APPEAL BOOK ENDORSEMENT

[1] In acquitting the appellant on all of the false pretence counts, the trial judge did so on the basis of an understanding that had grown up between the complainant and the appellant that the cheques were not to be deposited immediately because of a present lack of funds but that funds would become available in a reasonable period of time. While that reasoning was certainly appropriate in relation to the cheques dated February 4 and 5 (three in number), it appears to have escaped the trial judge's attention that it did not apply in respect of the two cheques dated February 9th given his finding, supported by the evidence, that the appellant stopped payment on those cheques before the goods were delivered and had no intention of paying for them. Had the trial judge considered the matter that way, he no doubt could have convicted the appellant of the false pretence charges in counts 5 and 6. His failure to do so enured to the appellant's benefit. It does not render the conviction on count 1 for fraud inconsistent; nor, in our view, is the verdict unreasonable.

[2] Accordingly, the appeal from conviction is dismissed. The appeal from sentence is dismissed as abandoned