DATE: 20050517

DOCKET: C42523

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – PHILLIP CAVANAUGH (Appellant

BEFORE:

ROSENBERG, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Irwin Koziebrocki

for the appellant

Paul G. McDermott

for the respondent

HEARD & RELEASED ORALLY:

May 13, 2005

On appeal from conviction by Justice Erwin W. Stach of the Superior Court of Justice dated July 30, 2004 and sentence imposed October 19, 2004.

E N D O R S E M E N T

[1] The trial judge found that the complainant’s evidence was confirmed in many respects by the testimony of P.M. We agree with that assessment of the evidence. P.M. confirmed the complainant’s evidence in seven or eight critical respects, including the circumstances in which the first act occurred, that the complainant was left alone with the appellant, and that P.M. returned and found the complainant unconscious on the bed and naked except for her socks.

[2] There were some variations in the evidence of the two witnesses, for example, the layout of the apartment and the season of the year. The trial judge addressed some of these variations and in general considered them collateral. He was entitled to reach that conclusion. There were also some variations in the complainant’s own evidence but they were minor. Various inconsistencies, variations and contradictions are explained by the fact that both child witnesses were intoxicated on the occasions that they attended the apartment.

[3] Finally, the appellant’s own evidence provides support for some of the complainant’s and P.M.’s evidence, including that the complainant was intoxicated and passed out, that P.M. left her alone while he went on an errand for the appellant, and that the appellant had a distinctive tattoo on his body.

[4] Finally, this is not a case where the trial judge applied different standards of scrutiny. The appellant’s evidence contained a glaring and serious inconsistency as to the condition of the children when they attended at his apartment that was at the core of his story. The trial judge was entitled to treat this as a serious problem with the appellant’s credibility.

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

Signed: “M. Rosenberg J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”