R. v. Phelan, 2013 NLCA 33

Date: 201305 15 Docket: 12/52 Citation: R. v. Phelan , 2013 NLCA 33 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DARRELL BENJAMIN PHELAN APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: White, Harrington, Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201101G4516 Appeal Heard: March 11, 2013 Judgment Rendered: May 15, 2013 Reasons for Judgment by Hoegg J.A. Concurred in by White and Harrington JJ.A. Counsel for Appellant: Stephen Orr Counsel for the Respondent: Lloyd Strickland

Hoegg J.A.: Introduction [ 1 ] Darrell Benjamin Phelan appeals his conviction for aggravated assault, saying that the trial judge made legal and factual errors when he found that Mr. Phelan stuck a needle containing his Hepatitis C infected blood into Yolanda Whitten’s thigh without her consent on January 29, 2011. Facts [ 2 ] Ms. Yolanda Whitten and Mr. Phelan were in an intimate relationship from the fall of 2009 until late December 2010. Early in 2010, Mr. Phelan was receiving treatment for drug addiction through the methadone drug treatment program. Mr.

Phelan’s blood is infected with the Hepatitis C virus, a fact which was known to him since July 2009 and known to Ms. Whitten during their relationship. [ 3 ] In December 2010 Mr. Phelan fell off his methadone treatment program, which caused Ms. Whitten to break up with him. Subsequently, Ms. Whitten had concerns about her safety and obtained an emergency protection order in relation to Mr. Phelan. Despite the order, she continued to see him. At the time, Ms. Whitten was living with her parents, who lived on the same street as Mr. Phelan’s mother, with whom Mr.

Phelan was living. [ 4 ] One night in late December 2010, Ms. Whitten and Mr. Phelan had an argument at the home of Mr. Phelan’s mother. Ms. Whitten had accused Mr. Phelan of having stolen money from her purse to buy drugs. She left the home, whereupon Mr. Phelan followed her onto the street, grabbed her purse off of her shoulder, and fled. The purse had been a Christmas gift to Ms. Whitten. It was expensive and it contained many of Ms. Whitten’s personal effects, including her prescription medication and identification. As a result of the altercation, Ms. Whitten told Mr.

Phelan the relationship was over. [ 5 ] Sometime after 2 a.m. on January 29, 2011, Ms. Whitten and Mr. Phelan spoke on the telephone. Mr. Phelan told Ms. Whitten that he wanted to meet her to discuss returning her belongings to her. Ms. Whitten got out of bed, put on pajama pants, a dressing gown and jacket, and went downstairs to go outside to meet him. Her parents were up feeding their grandchild at the time, and she told her mother what she was doing as she passed through the kitchen. [ 6 ] Mr. Phelan came across the street and met Ms. Whitten on her doorstep. He was upset, and implored Ms.

Whitten to go back with him. She did not commit to doing so. He proceeded to pass her purse to her, and in so doing, he reached his right hand around to her left side and she felt a prick in her left thigh area. As soon as she felt the prick, she dropped the purse, punched his forearm and got away from him. Mr. Phelan turned around and ran across the street to his home. [ 7 ] After Ms. Whitten entered her home, she pulled down her pajama pants and saw a needle mark in the flesh of her left thigh and blood on her pajama pants. She was upset, as she knew that Mr. Phelan had Hepatitis C. Ms.

Whitten’s mother was still in the kitchen. At trial, she confirmed that she had heard Mr. Phelan’s “loud and upset” voice when her daughter was outside with him, that her daughter was upset when she came back into the house, and that she saw a needle prick mark and scratch on her daughter’s thigh. Ms. Whitten and her mother saw that the blood on Ms. Whitten’s pajamas was not coming from her. The hospital and police were called. When the police arrived to investigate the complaint, they noticed blood splattered on the front doorway of the house. Ms.

Whitten’s father then took her to hospital, where the attending physician confirmed a mark consistent with a needle prick on Ms. Whitten’s thigh and treated her with a tetanus shot and HIV prophylaxis. Ms. Whitten was referred to Dr. Missaghi, an infectious diseases specialist. [ 8 ] It was subsequently determined by police that the blood on Ms. Whitten’s pajamas and the doorway of her mother’s house was that of Mr. Phelan. Mr. Phelan admitted this at trial. [ 9 ] Ms. Whitten was under the care of Dr. Missaghi for several months. Eventually he was able to determine that she had not contracted Hepatitis C.

At trial, the doctor was qualified by consent as an expert in infectious diseases.

He gave evidence regarding the Hepatitis C virus, from which the following points, summarized at paragraph 21 of the Crown factum, are relevant: - that [Hepatitis C] is the most common cause of chronic liver disease in North America; - that someone who has infected blood injected into them by means of a hollow-bore needle would be subject to a high risk exposure to the virus; - that 60% to 80% of people infected with the Hepatitis C virus go on to develop chronic Hepatitis C; - that while someone infected will not become acutely ill right away, they may suffer from fatigue, aches and pains for a very long time; - that 20% to 30% of patients go on to develop cirrhosis, end-stage liver disease and liver cancer.

Hepatitis C is also associated with other diseases such a diabetes mellitus, thyroiditis, lymphoma and skin disorders such as lichen planus; - that several of the associated conditions listed above are life-threatening; - that there is no drug that can be provided to someone immediately after a possible exposure which might minimize the chances of infection; and - that the rate of successful treatment of Hepatitis C is limited, and, indeed, it is one of the more difficult infectious diseases that he treats. [ 10 ] Dr. Simon Avis, a forensic pathologist, also testified at trial. From photographs, he described Ms.

Whitten’s injury as a “red

puncture wound and a scratch” consistent with puncture by a hypodermic needle and movement at the time of entry of the needle. Hetestified that there could be other causes for the wound. [11] Ms. Whitten testified that she recalled that Mr. Phelan had once threatened to jab an ex-girlfriend with a syringe containing hisblood. She therefore believed that was what he had done to her. [12] Mr. Phelan gave evidence. He said that when he met Ms. Whitten on the doorstep, he did not stick her with a needle containinghis blood. Rather, he said that he had given Ms. Whitten a hug before returning to his own house.

His position was that Ms. Whittenhad staged the whole event, as she had access to his mother’s house and knew where the needles were kept, and she wanted to get backat him for stealing her purse. Issues [13] Mr. Phelan appeals his conviction, alleging that the trial judge made legal and factual errors in convicting him. He argues thatthe trial judge erred in law, fact or mixed fact and law by: 1) reversing the Crown’s burden to prove the offence; 2) misapprehending the evidence; 3) finding that the actus reus of aggravated assault was established on the evidence; and 4) finding that Mr.

Phelan’s evidence did not raise a reasonable doubt. Standard of Review [14] In criminal law, the standard of review for questions of law is correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 atpara. 18). The standard of review for findings of fact and factual inferences is that of palpable and overriding error, succinctly expressedby Fish J. in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9: … Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable.

The imputed error must, moreover, be plainly identified. And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm… Reversing the Burden of Proof [15] Mr. Phelan argues that the trial judge reversed the burden on the Crown to prove the offence by ruling that “in order to believethe appellant’s evidence, he would have to believe that the complainant had deliberately stuck herself with a needle that had his blood init”. Mr. Phelan relies on R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 to support his argument, saying that even if the trialjudge did not believe Mr. Phelan’s evidence, he could still have found Mr. Phelan not guilty on the basis of reasonable doubt.

Mr.Phelan argues that the trial judge began his analysis by stating that the complainant was stabbed with a needle containing his blood,rather than by stating that he was innocent until proven guilty. [16] In W.(D.), Cory J. described a three-step analysis for considering whether an accused is guilty beyond a reasonable doubt: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [17] The W(.D.) analysis, as it has become known, was revisited by the Supreme Court of Canada in R. v. Dinardo, 2008 SCC 24,[2008] 1 S.C.R. 788. In Dinardo, Charron J., for a unanimous court, rejected the formalistic application of the W.D. formula, saying atparagraph 23: … [T]here is nothing sacrosanct about the formula set out in W.(D.).

Indeed, as Chamberland J.A. himself acknowledged in hisdissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D.);it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instruction be respected. In a case that turnson credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence,considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge mustconsider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt… [18] Whether the trial judge believed Mr. Phelan is the first of the questions he had to ask himself in conducting a W.(D.) analysis. The trial judge clearly found Mr. Phelan’s evidence wanting and did not believe him. The trial judge’s impugned statement is anexpression of his reasoning process; it explains why the trial judge did not believe Mr. Phelan’s evidence. [19] The trial judge’s decision shows he respected Mr.

Phelan’s entitlement to the presumption of innocence, and the Crown’sburden to prove his guilt beyond a reasonable doubt (paragraphs 26 to 36). Moreover, the trial judge considered Mr. Phelan’s evidence inthe context of the evidence as a whole and also addressed Ms. Whitten’s evidence, including its inconsistencies, before determining thathe was convinced beyond a reasonable doubt of Mr. Phelan’s guilt. The fact that the trial judge did not set out his analysis in the exactthree-step W.(D.) formula does not mean that he did not apply W.(D.) or that he did not properly assess the evidence in reaching hisdecision.

He dealt with the substance of W.(D.) in the context of the evidence as a whole as he was required to do (Dinardo) beforeconcluding that Mr. Phelan was guilty beyond a reasonable doubt (paragraphs 51 to 53).

[20] The trial judge’s statement does not suggest that he was relieving the Crown from the burden of proving the case against Mr.Phelan. Neither is there any indication elsewhere in the judgment that the trial judge reversed the burden of proof on the Crown. Accordingly, this ground of appeal fails. Misapprehension of Evidence [21] Rowe J.A. set out the law related to misapprehension of evidence at paragraphs 16-18 of R. v. MacIsaac, 2013 NLCA 26: [16] The test for misapprehension of evidence was set out by Doherty J.A. in R. v. Morrissey (1995), (ON CA), 97C.C.C. (3d) 193 (Ont.

C.A.), at paragraph 83: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence. [17] The misapprehension of the evidence must be such that it could have affected the verdict. As Laskin J.A. wrote in R. v. G.(G.),(1995) (ON CA), 97 C.C.C. (3d) 362 (Ont.

C.A.), at paragraph 59: When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict isrendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously not every error in the apprehension orappreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction. But s. 686(1)(a)(

i) of theCriminal Code requires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law which cannotbe cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice. [18] In R. v. Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732, Binnie J. wrote at paragraph 2: Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance ratherthan to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [22] Mr. Phelan argues that the statement made by the trial judge referenced in paragraph 15 above shows that he misapprehendedthe evidence. Mr. Phelan maintains that Ms. Whitten staged the whole event, including jabbing herself with something different than aneedle containing his blood. To support his position, he relies on Dr.

Avis’ evidence that Ms. Whitten’s wound, although consistentwith having been made by a hypodermic needle, could also have been caused by another means. Mr. Phelan says that it is illogical thatMs. Whitten would jab herself with his infected blood, and once the trial judge reasoned that he would have to believe that she had donethat in order for him to believe Mr. Phelan, there was no hope of Mr. Phelan being acquitted. [23] In essence, Mr. Phelan is arguing that Ms. Whitten squirted a needle containing his blood on her pajamas and on the doorway,but that she did not use that needle to jab herself.

Rather, she jabbed herself by some other means, presumably before she went outside,or somehow during the altercation on the doorstep. [24] The facts are that: 1) Mr. Phelan’s blood was on Ms. Whitten’s pajama pants and on the doorway; 2) there was a puncturewound and a scratch mark on Ms. Whitten’s thigh, and evidence that the scratch mark was consistent with movement while beingpricked (which supports Ms. Whitten’s evidence that she fled from Mr. Phelan as soon as she felt the needle prick); 3) it was the police,not Ms.

Whitten who discovered the squirted blood on the doorway when they arrived to investigate the complaint; 4) Ms. Whitten wentdirectly to hospital and submitted to medical treatment including the ingestion of drugs and Dr. Missaghi’s care for several monthsthereafter; and 5) the evidence of Ms. Whitten’s mother corroborates Ms. Whitten’s version of events in significant respects. [25] While it may have been technically possible for Ms. Whitten to have stuck herself with something different than a needlecontaining Mr. Phelan’s blood before meeting Mr.

Phelan on the doorstep and while having his blood handy during the doorstepincident to sully her pajama pants and the doorway, the facts show that the trial judge’s statement was based on inferences reasonablydrawn from and well supported by the evidence and that Mr. Phelan’s position respecting the incident had no evidentiary basis. [26] Even if it could be said that the trial judge overstated the situation by failing to address the possibility that Ms. Whitten couldhave stuck herself with something other than a needle containing Mr.

Phelan’s infected blood, such an overstatement does not rise to thelevel of palpable and overriding error. Accordingly, the trial judge’s characterization of the situation in his statement does not show anymisapprehension of the evidence. Did the trial judge err in finding that the offence of aggravated assault was proved? [27] Mr. Phelan argues that the trial judge relied on the wrong legal test in considering whether the offence of aggravated assaultwas made out. He says that the trial judge relied on R. v.

Cuerrier, (SCC), [1998] 2 S.C.R. 371 when he ought to haverelied on the more recent Supreme Court of Canada case R. v.

Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584 and that this led to a wrongresult. [28] The offence of aggravated assault is set out in section 268(1) of the Criminal Code: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [29] In Cuerrier, the Supreme Court of Canada addressed the issue of how a complainant’s life could be endangered by exposure tothe risk of HIV infection through sexual intercourse at paragraph 95: … There can be no doubt the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection throughunprotected sexual intercourse.

The potentially lethal consequences of infection permit no other conclusion. Further, it is not necessary

to establish that the complainants were in fact infected with the virus. There is no prerequisite that any harm must actually haveresulted. This first requirement of s. 268(1) is satisfied by the significant risk to the lives of the complainants occasioned by the act ofunprotected intercourse. (Emphasis added.) [30] The Cuerrier case had been dismissed at trial on the basis that the complainant had consented to sexual activity with theaccused, and the Crown’s appeal was dismissed by the British Columbia Court of Appeal. On appeal to the Supreme Court of Canada,there were three opinions from the sitting justices.

They all focussed on the circumstances in which a complainant’s consent to sexualintercourse could be vitiated by fraud. The majority held that a complainant’s consent to sexual activity may be vitiated by fraud whenthe accused conceals or fails to disclose that he [or she] is HIV positive, because of the deadly consequences of the risk of HIV infectionon an unknowing victim.

All of the Supreme Court justices concurred in allowing the Crown appeal and ordering a new trial. [31] In Mabior, the Supreme Court sought to clarify the circumstances in which fraud vitiates consent to sexual relations, given thatmedical advances in the years since Cuerrier was decided had substantially lowered the risk of contracting HIV through sexualintercourse.

At paragraph 91, Chief Justice McLachlin, for a unanimous Court, held that “the Cuerrier requirement of ‘significant risk ofserious bodily harm’ should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV.

If thereis no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexualrelations under s. 265(3)(c)”. [32] In both Cuerrier and Mabior, the central issue concerning the Court was the circumstances in which fraud vitiates consent inrelation to a charge of aggravated sexual assault in the context of the health risks associated with HIV. Mabior did not alter Cuerrierwith respect to how endangerment to a complainant’s life is established.

Nevertheless, the Chief Justice’s reasoning in paragraph 92 ofMabior with regard to the extent of risk to one’s health posed by exposure to HIV is helpful: … It is enough to note that HIV is indisputably serious and life-endangering. Although it can be controlled by medication, HIV remainsan incurable chronic infection that, if untreated, can result in death.

As such, the failure to advise a sexual partner of one’s HIV statusmay lead to a conviction for aggravated sexual assault under s. 273(1) of the Criminal Code. (This said, it may be that with furthermedical advances, the death rate may decline to the point where the risk of death is virtually eliminated, reducing the offence to sexualassault simpliciter under s. 271(1) of the Criminal Code.

Similarly, the day may come when researchers will find a cure for HIV, withthe possible effect that HIV will cease to cause “serious bodily harm” and the failure to disclose will no longer fall under the category offraud vitiating consent for the purposes of sexual assault.) (Emphasis added.) [33] Mr. Phelan is charged with aggravated assault pursuant to section 268(1) of the Criminal Code. Consent is not an issue. Rather, the issue in Mr. Phelan’s case is whether the jab to Ms. Whitten’s thigh from a needle containing Hepatitis C infected bloodestablishes endangerment to Ms.

Whitten’s life. [34] Review of the unopposed expert evidence of Dr. Missaghi, which the trial judge accepted, and which is summarized inparagraph nine above, leaves no doubt that the risk of contracting Hepatitis C from a jab with a needle containing infected blood is morethan “a realistic possibility”, and that Hepatitis C can cause blood disorders, cirrhosis of the liver and liver cancer which are life-threatening conditions.

Moreover, although there is no legal requirement for an infected complainant to have medical treatment, Dr.Missaghi’s evidence makes clear that Hepatitis C is a life-threatening condition whether it is treated or not, for there is “no good post-exposure prophylaxis” and the success of treatment is limited. [35] In the result, the trial judge had ample evidence to support proof of endangerment to life as an essential element of the offencecharged and in accordance with the law as established in Cuerrier and affirmed in Mabior.

Accordingly, he made no error in concludingthat the actus reus of the offence was proved. Did the trial judge err in finding that Mr. Phelan’s evidence failed to raise a reasonable doubt? [36] Mr. Phelan argues that the trial judge ought to have appreciated that the evidence raised a reasonable doubt as to his guilt. Hemakes a number of arguments based on his

interpretation of the evidence, all of which could possibly support the view that Ms. Whittenhad the ability or opportunity to stage the entire event which led to the charge against him. Of course, evidence of ability andopportunity to do something does not prove that that something was done. More is required. Mr. Phelan does not point to any evidencein support of his arguments that could cause this Court to conclude that the trial judge made findings that were clearly wrong,unsupported by the evidence or unreasonable. Indeed, Mr.

Phelan has not made any allegations of error on the part of the trial judge inrelation to his failure to find that he had a reasonable doubt as to Mr. Phelan’s guilt. Mr. Phelan simply argues that there was evidencewhich could have caused the trial judge to have a reasonable doubt. [37] In a criminal trial, it is the responsibility of the fact-finding court to hear the evidence, assess it for its credibility and reliability,and weigh it in determining the ultimate issue — whether the accused is guilty beyond a reasonable doubt. In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory J. defined reasonable doubt as doubt based upon reason and common sense and logicallyconnected to the evidence or absence of evidence — not an imaginary or frivolous doubt nor doubt based on sympathy or prejudice. Justice Cory said reasonable doubt requires more than probable guilt, but not proof to an absolute certainty. [38] The powers of an appellate court in a criminal case are set out in

section 686 of the Criminal Code. The majority of criminalappeals are based on allegations of legal error, but an appellate court also has the power to review a conviction for unreasonableness ormiscarriage of justice. Mr. Phelan is not arguing that the trial judge’s decision is unreasonable, although the Crown suggests that this is

in effect what Mr. Phelan is doing. [39] The Supreme Court of Canada addressed the distinction between assessing the reasonableness of a verdict in a judge-alone trialas opposed to a jury trial in R. v. W.H., 2013 SCC 22 at para. 26: A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially could notreasonably have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381 at para. 36.

While the same test was traditionally applied to verdicts by both juries and trial judges, the more recentjurisprudence from the Court has expanded somewhat the scope of review for unreasonableness in the case of verdicts reached by trialjudges: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3.

This development recognizes apractical distinction between reasonableness review of a trial judge’s verdict and of a jury verdict: judges, unlike juries, give reasons fortheir findings which the appellate court may review and consider as part of its reasonableness analysis. … [40] In R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, Deschamps J. addressed the issue when it involves appellate review of a trialjudge’s credibility assessment: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A courtof appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonablecannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence”(R. v. Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [41] The determination of Mr.

Phelan’s case at trial primarily involved assessing the credibility of Ms. Whitten and Mr. Phelan andthe reliability of their evidence. In the context of the evidence as a whole, the trial judge assessed the credibility of Ms. Whitten andaccepted her evidence; he assessed and rejected Mr. Phelan’s evidence. His decision is well supported by the record and based on sound,logical reasoning.

It is one that a judge properly instructing himself could reasonably have rendered and it is neither contradicted by theevidence relied on by the trial judge nor incompatible with evidence that has not otherwise been contradicted or rejected by the trialjudge. The trial judge’s decision is not unreasonable. [42] In the result, this ground of appeal fails. Disposition [43] None of Mr. Phelan’s grounds of appeal having succeeded, I would dismiss his appeal. L. R. Hoegg J.A. I concur: C. W. White J.A. I concur: M. F. Harrington J.A.