COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Swift, 2013 ONCA 63

DATE: 20130131

DOCKET: C51015

Rosenberg, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Swift

Appellant

Russell S. Silverstein, for the appellant

Melissa Adams, for the respondent

Heard: January 23, 2013

On appeal from the conviction entered on February 27, 2009 by Justice Gail S. Dobney of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from the judgment of Dobney J. convicting him on charges of attempted murder, weapons dangerous, unlawful confinement, uttering threats and assault with a weapon. The charges arise out of an incident on February 19, 2004 at a home on Hart Avenue in Toronto owned by the family of Ryan Capri, a friend of the appellant’s. The principal evidence for the prosecution came from one of two victims, William Thornhill. The other victim, Cathy Chown, did not appear at trial. In short, it was the prosecution’s case that in the course of a confrontation about who had the right to stay in the home, the appellant stabbed Thornhill in the abdomen and then confined him and Chown for a considerable time. During that time the appellant assaulted Chown and threatened her and Thornhill. There was no dispute at trial that the appellant had stabbed Thornhill; his defence was self-defence.

[2] The appellant did not testify. Instead he relied upon the evidence of a friend, Afzal Dadhisheth (referred to in the evidence as Aya), who was also at the home for part of the time. Dadhisheth testified that he saw Thornhill take hold of a baseball bat and swing it at the appellant’s head. He saw the appellant attempt to protect his head with his hands but the bat connected with the appellant’s face at least once, drawing blood. Dadhisheth then left the house. He did not see the appellant take hold of a knife, did not see how the appellant was able to disarm Thornhill, and did not see how the appellant stabbed Thornhill.

[3] The appellant submits that the trial judge applied different standards of scrutiny, applying a stricter standard to Dadhisheth’s evidence than Thornhill’s. He also submits that the trial judge misapprehended some of the evidence. In the result, the trial judge wrongly rejected Dadhisheth’s evidence. We do not agree and accordingly, the appeal is dismissed.

[4] The appellant’s argument centres on the summary of reasons the trial judge gave for rejecting Dadhisheth’s evidence:

I must comment on the credibility of Aya’s evidence. I find it implausible, if he had truly seen his friend struck in the face with a baseball type swing, that he would have done nothing. While he himself might not have been of a physical stature to get involved, he had options, including asking for help from other friends of Mr. Swift who were there in the house. Aya contradicted Mr. Capri’s evidence as to who was in charge of the house, indicating he himself had been asked to take charge in his absence. He did not tell anyone but Mr. Capri about events that happened that evening, leaving questions as to his memory of events. No baseball bat was seen by the police anywhere in the house, although the complainant himself agrees that there had been one, although not in his hands.

Mr. Thornhill agrees that Aya left the premise without helping, but indicated that this was after Mr. Swift had stabbed him the first time. In my view this is a much more understandable state of affairs in that a relative stranger, not his friend Mr. Swift, was in trouble, and Aya was neither able nor inclined to help him.

In holding this it is implicit in my finding that I do not accept the evidence of Aya that Mr. Thornhill had a bat in his hands and was swinging it and connecting with the face of Mr. Swift. The injury described by Aya from this alleged swing with a bat consisted of nothing but a bit of blood, and no other harm that would be more in keeping with a vicious assault to the face with a weapon.

[5] In his very helpful submissions, Mr. Silverstein carefully reviewed each of the reasons given by the trial judge in an attempt to demonstrate that they represented either a stricter level or scrutiny or involved a misapprehension of the evidence. We briefly consider each of those submissions.

Implausibility of leaving without helping; not telling anyone else about the attack by Thornhill

[6] The appellant submits that the trial judge failed to take into account that Dadhisheth was young and probably frightened and it was a natural reaction to want to not get involved. This could be one explanation for the conduct, but the trial judge could properly consider the implausibility of Dadhisheth’s conduct as a whole. It was not just that Dadhisheth left without summoning help or doing anything else; for two years, he told no one other than Ryan Capri what he had witnessed, and did not come forward to the prosecution or the defence to help the appellant, someone he described as a very close friend. According to Capri, Dadhisheth was present when the police came to the house. Dadhisheth did not tell them that his close friend had been attacked. Given the full context, the trial judge was entitled to find Dadhisheth’s conduct implausible, if he really witnessed the attack by Thornhill, and that it was therefore unbelievable that the incident he described had occurred.

Contradiction as to who was in charge of the house

[7] Ryan Capri’s family owned the house where the incident occurred. He was staying in Hamilton during the relevant time. There was a dispute as to who he had left in charge of the house. Thornhill claimed that he had been left in charge. At the time he was living with Chown, who was Capri’s aunt. Capri testified that he left only the appellant in charge. Dadhisheth testified that Capri told him, the appellant and an occupant of the home, Andrew Brunelle, that they were in charge. The trial judge found as a fact that Capri had left the appellant in charge of the house and not Thornhill, who was a virtual stranger to him. The trial judge held, however, that Thornhill still might have had the belief that he had some role to play in looking after the house.

[8] The appellant submits that the trial judge was applying different standards of scrutiny on this issue. While she found it understandable that Thornhill could believe he had a role, she held it against Dadhisheth that he believed he had a role. In our view, this does not reflect an erroneous approach to the assessment of credibility. The trial judge explained why Thornhill could have this belief, because of his relationship with the owner’s aunt. Dadhisheth had no similar connection. He did not live at the home and was nothing more than a frequent visitor.

No baseball bat was found

[9] The appellant submits that given that Thornhill testified to seeing a bat, the trial judge erred in taking into account that the police did not find one. We agree that the trial judge ought not to have attached any weight to this issue. However, this was but one factor of several and not a determinative point.

The injury to the appellant

[10] The appellant submits that the trial judge misapprehended the evidence by stating that Dadhisheth only saw “a bit of blood”. It may not have been entirely accurate to describe Dadhisheth’s evidence as being that he only saw a bit of blood, but this was not a decisive misapprehension of the evidence and the trial judge’s finding against Dadhisheth’s credibility on this issue was well-founded in the evidence. Dadhisheth described an attack of considerable force and brutality in which Thornhill “was really going at it like he was playing baseball”. That Dadhisheth only saw some blood on the appellant’s face and no other injuries and no other effect on the appellant strongly suggested that the attack did not take place as described by Dadhisheth. There was no independent evidence of any injuries to the appellant. In short, the objective evidence was inconsistent with Dadhisheth’s version of events.

The injury to Thornhill’s hand

[11] The appellant submits that the trial judge misapprehended the evidence of the injury to Thornhill’s hand. The trial judge found that the injury to Thornhill’s hand was inconsistent with Dadhisheth’s description of the way Thornhill was holding the bat. The appellant submits that properly understood the injury to Thornhill’s hand was to the outside and therefore it was possible that Thornhill was holding a bat when his hand was struck with the knife. Unfortunately, no oral evidence was called from a physician and the parties relied upon a medical report that is difficult to interpret. However, the transcript shows that Thornhill showed the scar to his hand to the trial judge. The trial judge’s description of the placement of the scar confirms that it could not have been inflicted if Thornhill was holding a bat as described by Dadhisheth. More to the point, the trial judge was in the preferred position to make this factual determination. The record does not support the allegation that she misapprehended the evidence.

The Assessment of Thornhill’s testimony

[12] The appellant’s submits that the trial judge was on the whole more forgiving of problems with Thornhill’s evidence than was warranted by the record. He submits that she forgave serious inconsistencies in his evidence and failed to appreciate how those inconsistencies undermined Thornhill’s evidence. We do not agree. The trial judge fairly assessed Thornhill’s evidence. She noted his tendency to exaggerate and took it into account. The fact remains that there was no dispute that the appellant stabbed and gravely injured Thornhill. The evidence in support of self-defence was frail. Even giving some credit to Dadhisheth’s account, the balance of the evidence is simply against self-defence. We have noted the lack of evidence of any injuries to the appellant. There is no evidence as to how the appellant disarmed Thornhill, how he inflicted the grievous knife wound to Thornhill’s abdomen in self-defence or why he had to resort to potentially deadly force.

DISPOSITION

[13] The test for reversing a trial judge’s verdict based upon alleged misapprehension of the evidence and approach to credibility assessment is whether the trial judge committed a palpable or overriding error. While we have noted a minor error by the trial judge, that error does not rise to the level of reversible error.

[14] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“Janet Simmons J.A.”

“David Watt J.A.”