DATE: 20040315
DOCKET: C40158
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – SHIVASHARMA KISTNASAMI (Accused/Appellant)
BEFORE: CATZMAN, DOHERTY and ARMSTRONG JJ.A.
COUNSEL: Paul Calarco for the accused/appellant
Melissa Ragsdale for the respondent
HEARD: March 11, 2004
RELEASED ORALLY: March 11, 2004
On appeal from the conviction imposed by Justice David P. Cole of the Ontario Court of Justice dated October 11, 2002.
E N D O R S E M E N T
[1] We would allow the appeal against conviction. In our view, the trial judge failed to adequately assess several features of the complainant’s evidence, which put her credibility into question.
[2] During the course of his reasons, the trial judge said:
The third thing on which Arjuna Kistnasami was able to testify and this has troubled me -- is the fact that if there was crying, if there was noise from the basement, given the fact that this was a small home, it could be heard upstairs. I never heard the complainant to say she screamed, or that she cried particularly loudly, or that she called out for assistance. So I’m not quite sure, even though I acknowledge the point, that that particularly assists me in the decision I have to make.
[1] The trial judge misapprehended the complainant’s evidence. In fact, she testified in chief that she was “yelling” and that her “tone of voice was really high”. On the trial judge’s own analysis of the case, this was a significant misapprehension of the evidence, which in and of itself requires reversal. In addition, he failed to adequately address her prior inconsistent statement made under oath to the police, in which she had denied any sexual activity on the night in question. In our view, this inconsistency was so potentially significant that it could not be excused by the complainant’s assertion that she was embarrassed.
[2] The appeal is allowed and the appellant’s conviction is set aside. Although this was a close case, we cannot say that the verdict was unreasonable. Consequently, the Crown is entitled to a new trial if, in the exercise of its discretion, it concludes that a new trial is appropriate. In this connection, we note that the appellant has already served the custodial portion of his sentence.
“M.A. Catzman J.A.”
“D.H. Doherty J.A.”
“R. Armstrong J.A.”