CORNER BROOK A couple of months before Colin Wheeler was convicted in Newfoundland Provincial Court of stabbing another man he spoke of appealing any decision made by the trial judge.
That appeal was heard on Jan. 7 and a trio of Supreme Court judges rejected Wheeler’s bid to appeal his convictions and seek a new trial. The judgement by Justice Charles White, and concurred to by Justices Malcolm Rowe and Michael Harrington, was rendered on May 17.
Wheeler was sentenced in November 2011 after being convicted of assault with a weapon and aggravated assault in August. Judge Wayne Gorman sentenced him to 18 months in jail on the assault with a weapon charge and four years for the aggravated assault. The sentences were ordered to be served concurrently and with time served were reduced to a total of 40 and a half months.
Wheeler’s appeal centred on an argument that Gorman should have doubted the testimony of the Crown’s witnesses.
The incident that originally brought Wheeler before the court took place in November 2010. Wheeler, his girlfriend at the time, and another woman had spent the night drinking in Benoit’s Cove and later returned to the woman’s home on Beothuck Cresent. It was there that the woman and her boyfriend, Wheeler’s victim, started to argue in an upstairs bedroom.
At trial the Crown case included evidence from the woman and the victim. Both testified that they were arguing when they heard Wheeler come up and open the door. They said he had two knives and that he struck the man, cutting his cheek. The woman fled the home and then Wheeler punched the victim in the eye and knocked him down. He tried to stab the man, but the victim was able to kick back and escape.
Wheeler testified that the argument between the man and woman became more violent and after hearing the man threaten to cut the woman’s throat he grabbed a knife and ran up the stairs.
A scuffle ensued and Wheeler said the man kicked him several times and he fell on top of him, accidentally cutting his face. He also said the woman and man had colluded against him.
In his decision, Gorman said Wheeler’s story was “nonsensical” and inconsistent with the physical evidence. Gorman was unimpressed with the woman’s evidence and said he decided not to accept her evidence without corroboration.
However, he did not have any difficulties with the victim’s evidence. He said he found the man’s evidence to be credible and that it provided corroboration to portions of the woman’s evidence.
In the written decision on the appeal White says there were three issues to be considered in the appeal:
* The primary issue is whether the trial judge ought to have had a reasonable doubt arising from the possibility that the two Crown witnesses colluded to falsify their evidence.
* Wheeler also argues that the victims’s poor memory and courtroom behaviour should have left the trial judge with an unfavorable assessment his credibility, which in turn should have given rise to a reasonable doubt about whether Wheeler was guilty.
* Wheeler does not argue that the trial judge erred in law or that he misapprehended the evidence. Rather, he argues that the trial judge came to an unreasonable verdict.
However, the decision said the evidence forms an adequate basis for the trial judge to “reasonably” make the findings of fact that he did. It goes on to say the trier of fact is entitled to believe imperfect witnesses, which he did in the Wheeler case. White concludes: “That is no basis for an appellate court to intervene, and set aside his findings of fact and the convictions grounded on them.”