Court of Appeal for Ontario

Citation: R. v. ATHERTON, 2007 ONCA 636

Date: 20070918

Docket: C45405

Before: SIMMONS, ARMSTRONG AND LANG JJ.A.

Between:

HER MAJESTY THE QUEEN Respondent

And

SEAN ARTHUR ATHERTON Appellant

Counsel: Richard Posner for the appellant John McInnes for the respondent

Heard and released orally: September 10, 2007

On appeal from the conviction entered by Justice Richard Gates of the Superior Court of Justice dated January 6, 2006 and from the sentence imposed by Justice Gates on April 21, 2006.

ENDORSEMENT

[1] The Crown acknowledges that a central issue in this case was whether the appellant deliberately stomped on the complainant’s face while the complainant was lying on the floor unconscious. In the trial judge's reasons for convicting the appellant he referred three times to the fact that the evidence of an independent witness, Jeff White, concerning this issue was uncontradicted. The appellant claims that both he and his brother Joe Atherton contradicted Mr. White's evidence on this point and that the trial judge's finding therefore reflects a material misapprehension of the evidence.

[2] We agree. Although the trial judge made some reference to the appellant's testimony on this issue, he made no reference to Joe Atherton's evidence that the appellant did not have the opportunity of stomping on the complainant's face. We acknowledge that Joe Atherton’s evidence on this point was open to interpretation. Nevertheless, in our view, it raised a sufficient issue in relation to Mr. White’s testimony that, in order to support his finding that Mr. White’s evidence was uncontradicted, the trial judge was required to refer to Joe Atherton’s evidence and explain why it did not amount to a contradiction. In the absence of any reference to Joe Atherton’s evidence and an appropriate explanation, we are left with the conclusion that the trial judge materially misapprehended the evidence and that a new trial is therefore required.

[3] In oral argument the appellant also submitted that the finding of guilt is unreasonable. We see no foundation for this submission.

[4] In light of the foregoing reasons, it is unnecessary that we deal with the sentence appeal. Accordingly, the appeal is allowed, the appellant’s conviction is set aside and a new trial is ordered.

“Simmons J.A.”

“Robert P. Armstrong J.A.”

“S.E. Lang J.A.”