



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Truong, 2012
    ONCA 91

DATE: 20120209

DOCKET: C51892

Rosenberg, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khanh Truong

Appellant/Applicant

Zachary Kerbel, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: February 6, 2012

On appeal from the conviction entered on September 28,
    2009 by Justice John D.G. Waugh of the Ontario Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

There is one issue on this appeal: did the trial judge err in law in his
    assessment of the appellants credibility and that of one of the two involved
    police officers, Constable Jocko?

[2]

We see no reversible error by the trial judge in his approach to the
    evaluation of either witness credibility.

[3]

It need hardly to be said that the assessment of the credibility of
    witnesses at trial falls squarely within a trial judges domain.  That
    assessment attracts significant deference from a reviewing court.

[4]

In this case, the trial judge rejected the appellants testimony on
    several bases.  Chief among these was the fact that the appellants version of
    events as recounted in his trial testimony stood in stark contrast to that of
    the senior police officer at the scene in several critical respects.  In this
    context, it was open to the trial judge to take account of the fact that the
    version of events suggested by defence counsel in cross-examining the police
    officers was materially different than the appellants account and to conclude that
    the appellant was making much of his evidence up as he went along.  The trial
    judge expressly confirmed in his reasons that this was the telling feature of
    the appellants testimony that weighed in very large measure against the
    appellants credibility.  This was an entirely permissible approach to the
    assessment of the appellants credibility.  To the extent, therefore, that the trial
    judge relied on the rule in
Browne v. Dunn
in his consideration of the
    appellants credibility, this reliance was of little, if any, moment.

[5]

Nor do we see any error in the trial judges treatment of Constable
    Jockos testimony.  Constable Jocko was a police trainee.  He had no
    independent recollection of the events at issue, few notes of what occurred and
    very limited experience as a police officer, let alone as a police witness in
    judicial proceedings, at the relevant times.  Contrary to the appellants
    submission, these were highly relevant and proper considerations in the
    assessment of his credibility and, more importantly, the reliability of his
    testimony.  Moreover, given these factors, the trial judge was fully justified
    in attaching more weight to the testimony of the senior police officer than he
    accorded to that of Constable Jocko.

[6]

The appeal is dismissed.

M. Rosenberg J.A.

E.A. Cronk J.A.

H.S. LaForme J.A.


