Appeal review of trial fact finding

An appeal court does not reconsider the factual findings of the trial court. This is true even if the appeal courts doubts the trial findings.



See, for example, today's decision of the Ontario Court of Appeal in R. v. Benjamin, 2008 ONCA 602:



[7] There are aspects of the complainant's evidence that are troubling. The trial judge addressed these issues, particularly her evidence concerning the manner in which the appellant broke in to her hotel room. This evidence was central to the break and enter charge. The physical evidence did not support the complainant's evidence as to how the appellant gained entry. She offered an explanation for the absence of physical evidence to support her assertion that the appellant broke the lock as he entered. She claimed, for the first time in cross examination, that the appellant fixed the lock at some later time. While one may wonder about the credibility of this explanation it was for the trial judge to assess this explanation in the context of the entirety of the evidence and make his own determination of the complainant's credibility. The trial judge did exactly that. He referred to this evidence, acknowledged the concern with respect to the accuracy of this part of the complainant's evidence. He also referred to the absence of any confirmatory evidence on this part of the complainant's evidence. Ultimately however he accepted her evidence that the appellant forced his way into the hotel room. That finding was enough to warrant a conviction on the break and enter charge. It is not our function to retry the case or make our own assessment of the evidence. We cannot interfere with the trial judge's finding.