DATE: 20051123

DOCKET: C41686

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DICKSON MOTSEWETSHO (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

Victor Giourgas

for the appellant

Robert Gattrell

for the respondent

HEARD & RELEASED ORALLY:

November 18, 2005

On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice dated December 9, 2003.

E N D O R S E M E N T

[1] The appellant appeals his conviction for sexual assault on the basis that the trial judge failed to recognize significant inconsistencies in the complainant’s evidence and misapprehended her evidence. He also alleges that the trial judge failed to give adequate reasons.

[2] Absent an error in principle, it is for the trier of fact to weigh a witness’s testimony in light of inconsistencies. The trial judge recognized the complainant was inconsistent on a number of matters but accepted the complainant’s testimony she did not consent to sexual intercourse.

[3] The trial judge assessed the complainant's testimony that she did not consent in light of the totality of the evidence, including her ambiguous conduct and her consent to some sexual activity short of intercourse. The trial judge observed that the complainant had been consistent in testifying she had not consented to sexual intercourse and remarked that it was not reasonably likely she would have consented to sexual intercourse without the appellant using a condom in the circumstances, as the complainant testified.

[4] The trial judge found as a fact that sexual intercourse occurred and the complainant made it unequivocally clear to the appellant that she did not consent to it. The trial judge committed no reviewable error in arriving to that conclusion.

[5] The appellant submits that the phone record indicating a call had been made from the complainant's phone to the appellant's cell phone raises a reasonable doubt as to whether the appellant was in the complainant's apartment at the time. The complainant testified she did not place the phone call to the appellant. There was no other testimony on the point. The trial judge accepted, as she was entitled to, the evidence the complainant did not make the call and that the appellant was in the apartment at the time. Any further comment would be speculation.

[6] In our view, the trial judge’s reasons were careful and thorough and certainly satisfied the requirements in R. v. Shepherd.

[7] The appeal is dismissed.

“S. Borins J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”