J. Q.B. A.D.1995 No. 1449 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: KENNETH YEE -and- HER MAJESTY THE QUEEN RESPONDENT M.R. Walker for the appellant M.M. Vass for the respondent JUDGMENT GEATROS J. October 17, 1995 Kenneth Yee was charged that he, "on or about 22nd June,1994, at or near Regina, Saskatchewan, did commit an assault onDavid Remage contrary to Section 266 of the Criminal Code". Aftera trial before a judge of the Provincial Court, he was convicted ofthe charge. He now appeals. Besides the complainant and the accused, another person was present at the time of the incident out of which the charge arose. He is Kim Wall, who was the only person other than the complainant and the accused who testified at the trial. He was Crown witness. The appellant's main contention arises out of what the trial judge said at the conclusion of arguments by counsel: After hearing the evidence that came to the Court, that the Crown evidence is credible and do not find the Accused's evidence credible. Therefore find him guilty as charged. Mr. Walker argues that the necessary implication is that the trial judge took into account only the evidence of the complainant David Remage and the accused, to the exclusion of Mr. Wall. Hiscontention, as I understand it to be, is that the trial judge soconcerned himself with the question of the credibility of theevidence of the complainant and the accused that he overlooked hisduty to consider such evidence, "together with the rest of theevidence, with a view to determining whether it raised a reasonabledoubt of the appellant\'s guilt, irrespective of whether he believedthe evidence of the (complainant)": per Sherstobitoff, J.A. in R. v. S.(T.), (1995) 1995 CanLII 3957 (SK CA), 98 C.C.C. (3d) 529, at p. 563. Here the trial judge did not, I suggest, say that he foundthe accused guilty only upon the credibility of the evidence ofthe complainant and the accused. He said he found the Crown\'sevidence to be credible, and the accused\'s evidence not to becredible. The Crown's evidence was comprised of both the complainant and Mr. Wall. As consequence am not persuaded that the trial judge overlooked his duty in the context of the passage from the judgment of Sherstobitoff J.A. in R. v. S.(T.), supra. Also, at p. 563 in the report of that case, Sherstobitoff, J.A. stated: This court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King (1947), 1947 CanLII (SCC), 89 C.C.C. 148 at p. 151, [1947] S.C.R. 268, C.R. 232; R. v. M.(S.H.) (1989), 1989 CanLII 31 (SCC), 50 C.C.C. (3d) 503 at pp. 548-9, 1989 CanLII 31 (SCC), [1989] S.C.R. 446, 71 C.R. (3d) 257. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as matter of law it remains open to an appellate court to overturn verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concluded that the verdict is unreasonable. Great deference to findings of credibility made at trial should be shown. Upon a consideration of all the evidence inthe transcript thereof, and "having due regard to the advantagesafforded to the trial judge", it cannot be said his findings arenot supported by the evidence, nor can it be said his conclusionsare clearly wrong so as to make the conviction unreasonable. See: R. v. Andres 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 (Sask. C.A.). In the result, the appeal against the conviction isdismissed, and accordingly affirmed.
The accused was convicted of assault. He contends that the trial judge so concerned himself with the question of credibility of the complainant and the accused that he overlooked his duty to consider evidence of a witness, 'together with the rest of the evidence, with a view to determining whether it raised a reasonable doubt of the appellant's guilt, irrespective of whether he believed the evidence of the complainant.' HELD: Appeal dismissed and conviction accordingly affirmed.  1)Great deference to findings of credibility made at trial should be shown. 2)The trial judge did not say that he found the accused guilty only upon the credibility of the complainant and the accused. He said that he found the Crown's evidence to be credible, and the accused's evidence not to be credible. The Crown's evidence was comprised of both the complainant and the witness. 3)The trial judge's findings are supported by the evidence and his conclusions are not clearly wrong so as to make the conviction unreasonable.