Court of Appeal for Ontario

CITATION: R. v. Zimunya, 2013 ONCA 265

DATE: 20130426

DOCKET: C55729

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kudzani Prosper Zimunya

Appellant

Counsel:

Margaret Bojanowska, for the appellant

Philippe G. Cowle, for the respondent

Heard: April 25, 2013

On appeal from the convictions entered on January 6, 2012 and the sentence imposed on March 15, 2012 by Justice Douglas M. Belch of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] This was a straightforward credibility case. The trial judge recognized that and he listed, very fully, the defence arguments as to why the complainant should not be believed.

[2] The trial judge dealt with the more serious aspects of the alleged inconsistencies. In the course of doing that, he said that defence counsel failed to cross-examine the complainant on the matter of oral sex. The Crown candidly acknowledges that the trial judge was in error on that point.

[3] In our view, this error is entitled to very little weight given the totality of the evidence. In this regard, we draw attention to the fact that there was no contest as to identity – the police found the appellant naked and intoxicated on the complainant’s bed after the complainant called them to her home. Further, the appellant did not testify as to an alternative account of events. Moreover, there was substantial corroboration of the complainants’ evidence, in numerous respects, by independent evidence. The error related to the testimony of the sex-assault nurse and her notes. This evidence was very weak and the trial judge was entitled to place little weight on it, especially as he implicitly accepted the complainant’s rejection of that evidence (insofar as it related to oral sex). The evidence, as defence counsel argued at trial, went to the question of impeachment and was used in an effort to demonstrate inconsistency in the complainant’s evidence. The trial judge was fully alive to this, along with all the other alleged inconsistencies, but was satisfied that the complainants were credible.

[4] The trial judge explicitly recognised the central importance of credibility and conducted an adequate assessment of the complainants’ evidence. He found that it had been corroborated in many significant respects by amongst other things, an independent witness. He was entitled to accept some, none or all of the complainants’ evidence. He found, beyond a reasonable doubt, that despite some inconsistencies in the complainants’ descriptions of the events, the sexual assaults took place.

[5] The appeal is dismissed.