





CITATION: R. v. Carvalho, 2011 ONCA 529



DATE: 20110720



DOCKET: C52040



COURT OF APPEAL FOR ONTARIO



Rosenberg, Cronk and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Antonio Carvalho



Appellant



Gavin S. MacKenzie, for the appellant Antonio Carvalho



John Patton, for the respondent



Heard and released orally:  June 30, 2011



On appeal from the conviction entered by Justice Wilson of the
          Ontario Court of Justice, dated November 25, 2009.



ENDORSEMENT



[1]

The appellant was convicted of aggravated assault after a trial before a
    judge sitting without a jury.  He seeks a new trial on two grounds.  We would
    give effect to neither.

[2]

First, the appellant complains that the trial judges reasons are
    inadequate because they fail to disclose that the trial judge gave any
    meaningful scrutiny to the testimony of the complainants sister before relying
    upon it to establish the appellants guilt. We do not agree.

[3]

The central issue before the trial judge was the identity of the person
    who struck the complainant on the head with a bottle of beer and caused
    significant head and facial injuries. The blow was inflicted in a crowded bar
    that was dimly lit. Although the accounts provided by those present, both
    patrons and servers, were not entirely uniform, the circumstantial evidence
    that implicated the appellant was formidable. The blow was struck immediately
    after a confrontation between the appellant and the complainant who had a rich
    history of mutual dislike and physical combat. The incident took place when the
    appellant and complainant were standing very close together and within a second
    or two of the complainants insult of the appellant. There was no evidence that
    anyone else present bore any equivalent animus towards the complainant.

[4]

The complainants sister was not at the bar during the altercation.  She
    saw and spoke to the appellant at another bar several miles away after she had
    learned that the complainant had been taken to hospital. She gave evidence of a
    conversation she had with the appellant that could be viewed as an
    acknowledgement by him of his responsibility for the complainants injuries.

[5]

In his consideration of all the evidence, the trial judge accurately
    recounted the testimony of the complainants sister. What is more, the trial
    judge scrutinized at least some of the frailties alleged to attach to her
    evidence. As we read the reasons for judgment as a whole, he did not assign her
    evidence a place of prominence in reaching his conclusion that the appellants
    guilt had been established.

[6]

Accordingly, we would not give effect to this complaint of error.

[7]

The second error alleged by the appellant also relates to the trial
    judges treatment of the evidence of the complainants sister. The appellant
    says that the trial judge misapprehened the evidence about the appellants
    alleged use of the word scuffle in his conversation with the complainants
    sister. Once again, we disagree.

[8]

Taken in their entirety, the reasons for judgment reflect a
    consideration of the evidence of the complainants sister as a whole.  In the
    end, it was open to the trial judge to conclude that the words spoken amounted
    to an acknowledgement by the appellant of his presence at and his involvement
    in an event that led to the complainants injuries.  This ground of appeal
    fails.

[9]

The appeal from conviction is dismissed.

M. Rosenberg J.A.

E.A. Cronk J.A.

David
    Watt J.A.


