COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Abdulkadir, 2013 ONCA 129
DATE: 20130304
DOCKET: C54952
MacPherson, MacFarland and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Khadija Abdulkadir
Appellant
Morris Manning, Q.C., for the appellant
Benita Wassenaar, for the respondent
Heard: February 25, 2013
On appeal from the conviction entered by Justice Anne Molloy of the Superior Court of Justice, dated December 20, 2011 and sentence imposed by Justice Molloy, dated February 1, 2012.
ENDORSEMENT
[1] The appellant appeals both her conviction of assault with a weapon and aggravated assault and her sentence. In relation to her conviction she raises five grounds of appeal.
First
[2] She submits the trial judge improperly relied on photographs as establishing burn patterns demonstrating the appellant’s lack of credibility – as she put it in her factum:
It is submitted that the trial judge erred in law in rejecting the evidence of the appellant on the basis of pattern of burns in the absence of expert evidence.
[3] We do not accept this submission. In our view, it was open to the trial judge to conclude from the photographic evidence that the location of the burns on the complainant’s body disproved the version of events sworn to by the appellant.
[4] Expert evidence was not required to show where on her body the complainant had suffered burns – simple powers of human observation sufficed.
[5] Further if the appellant’s evidence were accepted as to how the thermos came to explode, there would be no explanation for the burns to the top of the complainant’s head, neck and upper shoulder areas.
[6] The trial judge did not rely on her own “opinion as to the burn pattern on the complainant” – she relied on her own observations – plain for anyone to see.
Second
[7] She submits that the trial judge failed to properly consider reasonable doubt in light of the physical evidence and medical records.
[8] The trial judge properly instructed herself on the principles of R. v. W. (D.), [1991] S.C.R. 741. At pp. 6-7 of her reasons, she rejected the appellant’s evidence as “untruthful” and stated that it did not cause her to have a reasonable doubt as to her guilt.
[9] She then stated, correctly, that her task was to determine – on all the evidence – whether she was satisfied beyond a reasonable doubt that the appellant was guilty.
[10] The trial judge considered the evidence relating to the thermos lid – she said at p. 18 of her reasons:
… it is possible that the complainant saw the accused performing some kind of function with the lid and mistakenly believed she had removed the lid because she thought she saw it lying on the ground.
and went on:
I do not consider whether the lid was off or loosened to be fatal to the credibility of the complainant on this issue. The essence of her evidence was tea was poured, she was hit in the head, and then more tea cascaded from the thermos when it shattered.
It was open to the trial judge to make these conclusions.
[11] The complainant testified that glass shards went into her hair when the thermos shattered. Her evidence in this regard was corroborated by the evidence of Ms. Hassan.
[12] The fact that lacerations were not noted on the medical chart is, in our view, immaterial.
[13] The significant injuries resulted from the burns to her body and her ear drum which was perforated by the scalding tea. If there were lacerations they were insignificant in the overall scheme of things.
[14] The trial judge was alive to the complainant’s tendency to embellish – she accepted her evidence only where it was corroborated by other evidence.
[15] We see no error and would not give effect to this ground of appeal.
Third
[16] In her factum the appellant argues that the trial judge erred in reaching inconsistent verdicts.
[17] The appellant submits her convictions for assault with a weapon and aggravated assault are inconsistent with her acquittal on the threatening death charge.
[18] We do not agree.
[19] It is trite law that it is open to a trial judge to accept all, some or none of a witness’ evidence.
[20] As indicated above, the trial judge was aware of the complainant’s tendency to embellish and she accepted the complainant’s evidence only when it was corroborated by other evidence.
[21] There was no corroboration in relation to the death threat. Neither of the two independent witnesses present heard the appellant utter a threat. Hence the trial judge did not accept the complainant’s evidence. The assault charges were independent of the threatening death charge – neither depended on the other. We see no inconsistency in these verdicts.
Fourth
[22] The appellant submits that the trial judge misapplied R. v. W. (D.), supra, principles. We disagree. She rejected the appellant’s evidence and said further that it did not raise a reasonable doubt; she then went on and considered the whole of the evidence that she accepted and concluded it satisfied her of the appellant’s guilt beyond a reasonable doubt. We see no error.
5. Unreasonable Verdict
[23] In our view, there is nothing unreasonable about this verdict. The complainant’s evidence, the nature and location of her injuries coupled with the evidence of two independent witnesses – all provide ample support for the verdict.
[24] We would dismiss the conviction appeal.
6. Sentence
[25] This assault was a vicious one. The victim’s injuries included permanent scarring to her face, shoulder and chest areas as well as a permanent hearing loss in her left ear.
[26] The complainant was much older than her attacker and was suffering from a leg injury at the time.
[27] We see no error and the sentence is clearly within the appropriate range. While leave to appeal sentence is granted, the appeal as to sentence is dismissed.
“J. C. MacPherson J.A.”
“J. MacFarland J.A.”
“S. E. Pepall J.A.”