



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 appellants. 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 prosecutions 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 appellants head. He saw the
appellant attempt to protect his head with his hands but the bat connected with
the appellants 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 Dadhisheths evidence than
Thornhills. He also submits that the trial judge misapprehended some of the
evidence. In the result, the trial judge wrongly rejected Dadhisheths evidence.
We do not agree and accordingly, the appeal is dismissed.

[4]

The appellants argument centres on the summary of reasons the trial
judge gave for rejecting Dadhisheths evidence:

I must comment on the credibility of Ayas 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. Capris 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 Dadhisheths
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 Dadhisheths 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 Capris 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 Capris 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 owners
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 Dadhisheths evidence as being that he only saw a bit of
blood, but this was not a decisive misapprehension of the evidence and the
trial judges finding against Dadhisheths 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 appellants 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 Dadhisheths version of events.

The injury to Thornhills hand

[11]

The
appellant submits that the trial judge misapprehended the evidence of the
injury to Thornhills hand. The trial judge found that the injury to
Thornhills hand was inconsistent with Dadhisheths description of the way
Thornhill was holding the bat. The appellant submits that properly understood
the injury to Thornhills 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 judges 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 Thornhills testimony

[12]

The
appellants submits that the trial judge was on the whole more forgiving of
problems with Thornhills 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 Thornhills evidence. We do not
agree. The trial judge fairly assessed Thornhills 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
Dadhisheths 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 Thornhills abdomen in self-defence or
why he had to resort to potentially deadly force.

DISPOSITION

[13]

The
test for reversing a trial judges 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.


