DATE: 20060208

DOCKET: C41693

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- ALDEN NUNES (Appellant)

BEFORE:

LASKIN, ARMSTRONG AND MACFARLAND JJ.A.

COUNSEL:

Daniel Stein

for the appellant

Gillian Roberts

for the respondent

HEARD & ENDORSED:

February 7, 2006

On appeal from the conviction entered on November 18, 2003 by Justice Norman D. Dyson of the Superior Court of Justice made at Toronto, Ontario.

A P P E A L B O O K E N D O R S E M E N T

[1] This appeal turns on whether the trial judge fell into error by failing to fairly outline the position of the defence. The charge was admittedly perfunctory. Although the trial judge did tell the jury the essence of the defence’s position and the Crown’s position, he might well have referred to the evidence supporting each side’s position in more detail than he did.

[2] However, in our opinion, his failure to do so did not amount to a reversible error. In this case, the evidence of the appellant and the evidence of the police officers were diametrically opposed on every important issue.

[3] Thus, this case turned entirely on credibility. This would have been clear to the jury. And the trial judge properly instructed the jury on credibility by giving an accurate W.D. instruction.

[4] Overall, we are not persuaded that this is a case for appellant interference. The appeal is dismissed.