Court File and Parties

CITATION: R. v. Carvalho, 2011 ONCA 529

DATE: 20110720

DOCKET: C52040

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Carvalho

Appellant

Gavin S. MacKenzie, for the appellant Antonio Carvalho

John Patton, for the respondent

Heard and released orally: June 30, 2011

On appeal from the conviction entered by Justice Wilson of the Ontario Court of Justice, dated November 25, 2009.

ENDORSEMENT

[1] The appellant was convicted of aggravated assault after a trial before a judge sitting without a jury. He seeks a new trial on two grounds. We would give effect to neither.

[2] First, the appellant complains that the trial judge’s reasons are inadequate because they fail to disclose that the trial judge gave any meaningful scrutiny to the testimony of the complainant’s sister before relying upon it to establish the appellant’s guilt. We do not agree.

[3] The central issue before the trial judge was the identity of the person who struck the complainant on the head with a bottle of beer and caused significant head and facial injuries. The blow was inflicted in a crowded bar that was dimly lit. Although the accounts provided by those present, both patrons and servers, were not entirely uniform, the circumstantial evidence that implicated the appellant was formidable. The blow was struck immediately after a confrontation between the appellant and the complainant who had a rich history of mutual dislike and physical combat. The incident took place when the appellant and complainant were standing very close together and within a second or two of the complainant’s insult of the appellant. There was no evidence that anyone else present bore any equivalent animus towards the complainant.

[4] The complainant’s sister was not at the bar during the altercation. She saw and spoke to the appellant at another bar several miles away after she had learned that the complainant had been taken to hospital. She gave evidence of a conversation she had with the appellant that could be viewed as an acknowledgement by him of his responsibility for the complainant’s injuries.

[5] In his consideration of all the evidence, the trial judge accurately recounted the testimony of the complainant’s sister. What is more, the trial judge scrutinized at least some of the frailties alleged to attach to her evidence. As we read the reasons for judgment as a whole, he did not assign her evidence a place of prominence in reaching his conclusion that the appellant’s guilt had been established.

[6] Accordingly, we would not give effect to this complaint of error.

[7] The second error alleged by the appellant also relates to the trial judge’s treatment of the evidence of the complainant’s sister. The appellant says that the trial judge misapprehened the evidence about the appellant’s alleged use of the word “scuffle” in his conversation with the complainant’s sister. Once again, we disagree.

[8] Taken in their entirety, the reasons for judgment reflect a consideration of the evidence of the complainant’s sister as a whole. In the end, it was open to the trial judge to conclude that the words spoken amounted to an acknowledgement by the appellant of his presence at and his involvement in an event that led to the complainant’s injuries. This ground of appeal fails.

[9] The appeal from conviction is dismissed.

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”