DATE: 20050606

DOCKET: C40617

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- JANAKHAN RAJALINKHAM (Appellant)

BEFORE:

ARMSTRONG, LANG and ROULEAU JJ.A.

COUNSEL:

David E. Harris

for the appellant

Laura Hodgson

for the respondent

HEARD AND RELEASED ORALLY:

June 1, 2005

On appeal from the convictions entered by Justice Russell G. Juriansz of the Superior Court of Justice on June 13, 2003.

E N D O R S E M E N T

[1] The appellant appeals his convictions on charges of assault causing bodily harm and related offences.

[2] The main issue is whether the convictions can safely rest on the evidence of the appellant’s palm print on the exterior of the victims’ car. The appellant raises a secondary issue as to whether the trial judge erred in the application of the burden of proof.

[3] On the main issue, the appellant challenges whether the presence of the palm print on the car establishes the appellant’s presence at the time the offences were committed.

[4] While the trial judge rejected the evidence of the victims on many points, he accepted that the incident unfolded in substantially the manner in which the victims testified as supported by independent witnesses. Part of that evidence established the involvement of five perpetrators, one of whom smashed in the rear window of the car.

[5] The appellant’s palm print was found directly over the top of the car’s smashed rear window. The expert was unable to date the palm print other than to say that he would be surprised if it was there more than two weeks. The expert also testified, however, that the position of this palm print would have been “anatomically awkward” for it to have been left by a person simply leaning against the car. In addition, the palm print on the car was left with more pressure than the palm print provided by the appellant for the investigation.

[6] In R. v. Lepage (1995), 1995 123 (SCC), 95 C.C.C. (3d) 385 (S.C.C.), Sopinka J. addressed the drawing of inferences from fingerprint evidence as follows:

In my view, whether or not the inference of possession from the presence of fingerprints can be drawn is not subject to a hard and fast rule. Rather, as Morden J.A. noted, it is a question of fact which depends on all the circumstances of the case and all of the evidence adduced. (p. 395)

[7] In this case, given the nature of the offence and the nature and location of the print, the trial judge was entitled to his conclusion that this circumstantial evidence was consistent with guilt and inconsistent with any other rational conclusion.

[8] The second issue is whether the trial judge improperly shifted the burden to the appellant to give a reasonable explanation for the presence of the palm print. In this case, the defence offered three possible innocent explanations for the presence of the palm print. All three explanations were analyzed on their facts by the trial judge and found to be more in the nature of speculation than inference. The trial judge was entitled to reject those explanations.

[9] In our view, on the whole of his reasons, the trial judge adopted the proper standard of proof and did not shift the burden to the accused.

[10] The appeal is accordingly dismissed.

Signed: “Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”

“Paul Rouleau J.A.”