ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1953/13
DATE: 2014/03/24
B E T W E E N:
Her Majesty the Queen
Stacey Sheehan, for the Respondent
Respondent
- and -
Sattar Palani
Jacob Stilman, for the Appellant
Appellant
HEARD at St. Catharines, Ontario:
March 18, 2014
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON APPEAL
INTRODUCTION
[1] This is an appeal by Sattar Palani (“Palani”) from his conviction on the offence of sexual assault of the complainant B.T. (“B.T.”). The conviction was entered on January 11, 2013, by Justice J. Nadel of the Ontario Court of Justice.
[2] B.T. and her friend C.G. (“C.G.”), who were both Brock University students, were at a pub together in the early hours of April 10, 2011, when they hired a taxi operated by Palani to drive them back to their respective residences. There is no issue that Palani first drove to C.G.’s residence, at which point C.G. left the taxi. Palani then started to drive B.T. to her residence.
[3] B.T. testified that approximately three blocks from B.T.’s residence Palani pulled the taxi off of the main road, drove down an alleyway, and stopped. Then, B.T. testified that Palani physically forced B.T. to perform fellatio on him.
[4] Palani testified that B.T. did in fact perform fellatio on him, but that it was a consensual act. Palani testified that B.T. did not have enough money to pay the taxi fare and that she offered to perform fellatio as payment for her fare.
[5] The trial judge, in lengthy reasons, made findings of credibility with respect to both Palani and B.T.. In essence, the trial judge rejected Palani’s testimony and accepted the testimony of B.T. regarding Palani’s alleged sexual misconduct. Having made those credibility findings, the trial judge was satisfied beyond a reasonable doubt that Palani was guilty of the offence.
THE STANDARD OF REVIEW
[6] It is not the role of an appellate court to substitute its decision for that of the trial judge; the role of the appellate court is to decide whether the trial decision could reasonably have been rendered. Where an appeal is based on s. 686(1) (a)(i) of the Criminal Code of Canada, as in this case, the conviction should only be set aside if “it is unreasonable or cannot be supported by the evidence”. See R. v. Yebes, [1987] 2 S.C.R. 168 at p. 185 and R. v. W.(R.), [1992] 2 S.C.R. 122 at para. 16.
[7] The same test applies where the appeal is based on the trial judge’s assessment of the credibility of the witnesses. However, the courts have repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility. The trial judge has the advantage of seeing and hearing the witnesses, and accordingly the appellate court should show great deference to findings of credibility that are made at trial. See R. v. W.(R.) at para. 20.
[8] Thus, an appellate court will be slow to set aside a conviction that is based on alleged unreasonable findings of credibility. Where the trial judge has failed to explain an important inconsistency in the evidence, or where the trial judge has applied a higher standard of scrutiny in his assessment of the evidence of the accused than that of the complainant, then an appellate court may find that the credibility assessment is flawed. See R. v. J.H., [2005] O.J. No. 39 (OCA) at paras. 43-64.
[9] Further, where findings of credibility are based on a misapprehension of the evidence or in reliance on irrelevant or improper factors, then the credibility findings of the trial judge may be in error. See R. v. Richards, [1999] O.J. No. 1420 (OCA) at para. 34.
ANALYSIS
[10] There were several inconsistencies or deficiencies in B.T.’s evidence. There were inconsistencies between her testimony at trial, her statement given to Officer Bonazzo that evening, and her DVD recorded statement given the next day. There were also some inconsistencies between B.T.’s evidence and the evidence of C.G.. All of these inconsistencies and deficiencies were discussed in the reasons of the trial judge.
[11] Appellant’s counsel submits that the trial judge made errors with respect to his findings of credibility, and divides those errors into two broad categories. First, the appellant submits that the trial judge gave B.T. a “credibility handicap”. That is, the trial judge found that the deficiencies in B.T.’s evidence were not as a result of her fabrication of the evidence, but were because of her inadequate preparation for trial by the Crown, and because of inadequate police investigation.
[12] Second, the appellant submits that the trial judge assessed the credibility of Palani and B.T. using different standards. The appellant submits that the trial judge dismissed Palani’s testimony without any detailed analysis simply because the trial judge believed that Palani’s story that a young female student would engage in this conduct was not plausible, whereas the trial judge overlooked the deficiencies in B.T.’s testimony.
[13] In my view, these two broad criticisms of the trial judge’s findings of credibility are without merit.
[14] In his reasons, the trial judge properly commenced his assessment of the credibility of the witnesses by referring to the test in R. v. W.(D.). Consequently, the trial judge first considered the testimony of Palani. In my view, the trial judge did not dismiss Palani’s testimony simply because he found it implausible that B.T. would perform fellatio to pay for a taxi fare. Rather, the trial judge, after summarizing Palani’s evidence, analyzed the credibility of Palani’s testimony in 17 detailed paragraphs.
[15] At paragraph 16 of his reasons, the trial judge disagreed with the submission that Palani’s evidence was full of detail. At paragraph 20, the trial judge observed that Palani had no innocent reason for driving off of the main roadway. At paragraph 21, the trial judge observed that Palani was incorrect as to how far he had driven off of the main roadway. At paragraph 21, the trial judge also observed that Palani’s testimony that B.T. needed to vomit was not plausible.
[16] At paragraph 23 of his reasons, the trial judge reviewed Palani’s testimony with respect to alleged sexual advances made by B.T. prior to the incident of fellatio, and found that Palani’s testimony as to his reaction to these prior sexual advances was unbelievable.
[17] Further, at paragraph 26, the trial judge found that it was not believable that B.T. would offer to perform fellatio to satisfy a very small debt without the protection of a condom, not being aware of how clean Palani was, and while she was within easy walking distance of her home.
[18] Therefore, the trial judge found that he did not believe Palani’s testimony, and that Palani’s testimony did not leave him in a state of reasonable doubt about Palani’s guilt. Thus, the trial judge was satisfied with respect to the first two parts of the R. v. W.(D.) test. In my view, there is no error in principle with respect to those findings.
[19] After making the aforementioned findings, the trial judge turned to the third part of the R. v. W.(D.) test by analyzing the Crown’s evidence, and, in particular, the credibility of B.T.. At that point, in 38 detailed paragraphs of his reasons, the trial judge painstakingly reviewed each of the alleged inconsistencies and deficiencies in B.T.’s evidence.
[20] I accept that the trial judge did in fact excuse some of the inconsistencies because in his view B.T. had not been properly prepared for trial as she had not been provided with a transcript of her DVD statement, and had only had a chance to review the DVD once.
[21] I also accept that the trial judge criticized the police officers who interviewed B.T. for her DVD statement for failing to ask her about a statement that she had previously made to Officer Bonazzo.
[22] Further, the trial judge took into account the fact that B.T. had recently been through a traumatic experience at the time she gave her statements to the police officers, and the fact that the incident had occurred while B.T. was still intoxicated to some extent.
[23] However, the trial judge specifically dealt with all of the inconsistencies and deficiencies in B.T.’s evidence in great detail. In making his findings of credibility, he did not excuse all of the deficiencies; rather he accepted that B.T. was not the best witness, and that there were inconsistencies in her evidence. In his conclusion, the trial judge stated that B.T. was not an impressive witness, but the trial judge was convinced that she had been attacked by Palani and forced to fellate him.
[24] In my view, the trial judge’s analysis of B.T.’s evidence was detailed and fair. There was no error in principle in his credibility findings regarding B.T.’s evidence.
[25] In summary, the trial judge did not give B.T. a “credibility handicap”, but rather assessed her evidence in a fair and detailed manner. Further, I find that the trial judge did not apply different standards in his assessment of the credibility of Palani and B.T..
[26] In these circumstances, the trial judge’s assessment of the credibility of these witnesses should not be set aside by an appellate court. This appeal against conviction is dismissed.
Henderson J.
Released: March 24, 2014
COURT FILE NO.: 1953/13
DATE: 2014/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Sattar Palani
Appellant
DECISION ON APPEAL
Henderson J.
Released: March 24, 2014