DATE: 20040326

DOCKET: C37782

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL LEWIS JONES (Appellant)

BEFORE:

WEILER, CRONK and GILLESE JJ.A.

COUNSEL:

Michael Jones in person

P. Andras Schreck

for the appellant

Kim Crosbie

for the respondent

HEARD:

March 22, 2004

On appeal from the conviction entered on February 14, 2002 by Justice Gregory A. Pockele of the Ontario Court of Justice.

E N D O R S E M E N T

[1] Mr. Jones asks this court to set aside his conviction for assault and sexual assault on five grounds: (1) alleged inconsistencies in the complainant’s evidence; (2) the trial judge misapprehended the evidence regarding the pre-trial identification process; (3) he was not in Canada at the time of the offence and therefore could not have committed the offence; (4) the complainant’s testimony should have been rejected as she failed to mention that he had tattoos on his chest and she testified that her assailant had two nipple rings whereas he has only one nipple ring; and, (5) as the defence witness, J. B., denied making prior inconsistent statements to the police and the statements were not proven, the trial judge erred in relying upon them.

Inconsistencies in the complainant’s evidence

[2] There are two alleged inconsistencies in the complainant’s evidence. The first is that she testified that the assailant grabbed her breast but she did not include that information in the statement that she gave to the police. The second is that she testified that the assailant grabbed at her crotch area more than once whereas she only related one such incident when giving her statement to the police.

[3] The trial judge was entitled to find, as he did, that the complainant satisfactorily explained the inconsistencies when she said that she neglected to mention them in her police statement as she did not think that they were important aspects of the assault.

The pre-trial identification process

[4] We are satisfied that the pre-trial identification process was sound. The complainant was presented with nine photographs, was clearly told that she was under no compulsion to choose any person based on the photographs and identified the accused from the photographs. Any flaws or weaknesses in the process went to the weight to be accorded the identification and not to admissibility.

Presence of the appellant in Canada

[5] The trial judge dealt with the appellant’s contention that he was not in Canada at the time of the offence. On the record, he was fully justified in rejecting that testimony.

The tattoos and nipple rings

[6] Similarly, the trial judge was alive to the matters of the tattoos and nipple rings. In light of the record, which includes the fact that there was no evidence as to how high the assailant lifted his shirt when assaulting the complainant, there is no basis for interfering with his finding in this regard.

J. B.’s statements

[7] The trial judge was explicitly aware of the inconsistencies in the evidence tendered by the various witnesses. We accept that he erred in attributing the complainant’s statement that “Mike hit her” to J. B.. However, as R. M. also gave that evidence, we are not satisfied that the appellant was prejudiced or that it led to any substantial wrong or miscarriage of justice.

[8] Accordingly, the appeal from conviction is dismissed.

“K. M. Weiler J.A.”

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”