DATE: 20050223

DOCKET: C41812

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JERMAINE PINNOCK (Appellant)

BEFORE:

MCMURTRY C.J.O., DOHERTY & MACFARLAND JJ.A.

COUNSEL:

Daniel Stein

for the appellant

Amy Alyea

for the respondent

HEARD:

RELEASED ORALLY:

February 11, 2005

February 11, 2005

On appeal from the conviction entered by Justice N.D. Dyson of the Superior Court of Justice, sitting with a jury, dated April 4, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of sexual assault and unlawful confinement. The outcome of the trial turned principally on the jury’s determination of the credibility of the complainant and the appellant. The complainant had made several prior inconsistent statements, some of which could potentially have impacted significantly on credibility.

[2] The only ground of appeal relates to the trial judge’s instruction on prior inconsistent statements. While it would have been better had the trial judge adhered to the model jury instructions, we are satisfied that taken as a whole, his instructions made it clear that the complainant’s prior inconsistent statements could be considered by the jury in assessing her credibility and could, depending on the jury’s assessment, adversely affect her credibility. The importance of the complainant’s prior inconsistent statements to the defence was made crystal clear to the jury and the respective positions of the Crown and defence with respect to those statements was also outlined in a fair manner by the trial judge.

[3] The trial judge made one factual error in his reference to a prior inconsistent statement concerning the complainant’s ownership of a cell phone. The appellant’s counsel at trial objected. Unfortunately, the trial judge appears to have misunderstood this objection and did not correct the factual error that he made in his initial charge. We are satisfied, however, that this error could not have prejudiced the appellant. It was common ground between the Crown and defence that the complainant had made the prior inconsistent statement concerning her ownership of a cell phone, even though the complainant would not agree that she had made the statement. The trial judge’s misstatement of that fact would not have misled the jury.

[4] The appeal is dismissed.

“McMurtry C.J.O.”

“Doherty J.A.”

“J. MacFarland J.A.”