R. v. Purcha Date:, 2013 BCPC 376

Citation: R. v. Purcha Date: 20130829 2013 BCPC 0376 File No: 193672-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MITCHELL PURCHA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: D. Assonitis Counsel for the Defendant: C. Hahn

Place of Hearing: Surrey , B.C. Dates of Hearing: August 26 and 27, 2013 Date of Judgment: August 29, 2013 [ 1 ] THE COURT : Mitchell Purcha has pled not guilty to the charge that on January 30th, 2012, he assaulted Scott Butler. [ 2 ] On this trial, I have heard the evidence of Mr. Butler, his wife, Kathleen, his sister, Michelle Schoelch, and her daughter, Brooklyn O'Neil. I have also heard evidence from Kelly Sinkewich, the former girlfriend of Mr. Purcha, who was with him on the night in question, and Cst. Nikopoulos, who conducted the investigation for the Langley RCMP.

The defence did not call evidence. [ 3 ] This is a criminal trial and the Crown caries the burden to prove this charge and all of its essential elements beyond a reasonable doubt. It is a substantial burden to reach, and that burden never shifts to the accused in the course of the trial. He is under no obligation to take the witness stand and give evidence or to call evidence in support of his defence. [ 4 ] I have reviewed the evidence since the trial and I have listened carefully today to the submissions of both counsel. [ 5 ] At about 9:45 p.m. on January 30th, 2012, Mr. Butler, Mrs. Butler, Ms.

Schoelch and her daughter, Brooklyn, 14 years of age at the time, were walking with Mr. Butler's dog in the area of 224th Street and 47th Avenue in Langley. They were walking as a group from 224th, along a pathway past a gazebo area and adjacent to a Langley municipal building, and on towards another cul-de-sac beyond. It was dark, but at the location where the altercation occurred, the evidence is that a streetlight illuminated that area. [ 6 ] Kelly Sinkewich was, at the time, Mitchell Purcha's girlfriend. She said on that evening that she was driving her blue Mini Cooper motor vehicle.

In the car with her were Mr. Purcha, his friend, Joshua Shu, and a third male that she knew as Marillio, who she understood was a Brazilian exchange student, and who she said was darker skinned than the other two males. These three males had consumed a large amount of alcohol and she said that they were very intoxicated. They had earlier gone to a movie, but had been ejected for causing a ruckus. She said Mr. Purcha and his friends over the evening had each consumed approximately 20 beers. [ 7 ] At about 9:45 p.m., she said Mr.

Purcha received a call from a friend, and as a result, she drove them to the gazebo area at 224th and 47th Avenue. She parked there. The three males got out of the car and ran off. They went around a hedge and out of her sight. She waited in the car for five to seven minutes. The three returned at the run. They got back into the vehicle and then she drove off. She dropped Mr. Shu at his home. Mr. Purcha and Mr. Marillio she dropped at a skate park, and then she herself returned home. She said when the three males returned to her car, she did not observe anything unusual about them. [ 8 ] The evidence of Mr.

Butler, his wife Kathleen, and Ms. Schoelch, is that as they walked from the area of 224th Street toward the gazebo area, they became aware of the arrival of a blue Mini Cooper. It was observed to be driven by a female. They were aware that people got out of the vehicle and began walking in their direction from behind. As those people moved closer, they became aware that these were three males. Each of these witnesses said that they saw the blue Mini pull up. Ms. Schoelch saw the males get out.

The tenor of the evidence of the Butlers is that they heard the doors open and close and the voices of males then coming from the vehicle behind them is what they believed was occurring. [ 9 ] Brooklyn is now, I understand, 16 years of age. She is a student about to enter Grade 11 at D.W. Poppy Secondary School, where she has attended since Grade 8. She knows Kelly Sinkewich, who was a student at her school several grades ahead of her. She knows Ms. Sinkewich's car because she has seen it at the school. She also knows both Mr. Purcha and Joshua Shu. Mr. Shu also attended her school, several grades ahead.

She has encountered Mr. Purcha on other occasions, both before these events and since. She knew both of these individuals at the time of these events and she said that she knew their voices. [ 10 ] In respect to Mr. Purcha, she said that she met him through a mutual friend, and that although she did not know him well, they had mutual friends and had been part of a larger group which occasionally were together in the Murrayville area. [ 11 ] In her evidence, Ms. O'Neil said that she saw the blue Mini pull up and stop virtually beside her and her family members as they walked from the street into the gazebo area.

She saw Ms. Sinkewich was the driver once the headlights of the vehicle were turned off. She recognized the car and the driver. [ 12 ] As they proceeded into the gazebo area and the three males approached from behind, all members of Mr. Butler's group at one point or another looked back. They saw the males approaching at a fast pace. They were yelling and hollering. Mr. Butler said he heard the word "bitch" repeatedly stated by these people. Kathleen Butler, Michelle Schoelch and Brooklyn O'Neil heard the males shouting at Mr.

Butler words to the effect, "What's your problem, bitch?" It appears all three were yelling this repeatedly. [ 13 ] Ms. O'Neil said that as the males got nearer, at approximately 50 feet behind them, she recognized Mitchell Purcha and Joshua Shu. A light on the building assisted in illuminating the area and assisted in her observation, she said. She identified Mr. Purcha in court as that individual. [ 14 ] Both males were acting aggressively. Those in the Butler group were worried and uncertain as to why they were being targeted. As the three males approached and Ms. O'Neil recognized Mr. Purcha and Mr.

Shu, she states that she told her mother to walk faster. The gap, however, was closed, and the Butler group turned around to face the three advancing males. The evidence of all is consistent, that two of the three then confronted and assaulted Mr. Butler. The third male stood to the side and did not participate in the physical assault of Mr. Butler, but continued in the verbal taunting. [ 15 ] I will note here that little cross-examination was directed to the witnesses in respect of the particulars of the assault itself. It appears the issue before the court, and the focus of cross-examination and certainly Mr.

Hahn's presentation, went to the issue of the

identity of those assailants, and of course whether the Crown has proven the identity beyond a reasonable doubt. [ 16 ] I am particularly aware of the frailties of identification evidence and the great care in assessing eyewitness identification in a criminal case. I note Mr.

Hahn has listed a number of factors to be considered in evaluating that evidence, including the opportunity to observe, including timing and positioning of the parties to the witness, lighting, distances between the parties, previous acquaintance with the subject and over what timeframe, and the recency of the encounters, the presence of distractions. I would include in this category the trauma and distress arising from the events themselves, and the speed with which they occur, and the presence of distinguishing features.

I have all of those considerations in mind as I assess the evidence in this case. [ 17 ] The Crown has brought to my attention Mr. Justice Smart's recent decision in case called R. v. White in the Supreme Court in this province. That was a decision on July 31st of this year. In that decision, at paragraphs 9 and 10, Mr. Justice Smart stated the following, and he is referring to a decision in the Court of Appeal in British Columbia. In Pierce , Mr.

Justice Smith provided caution with respect to recognition evidence at paragraph 39 of her decision, stating: While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be taken when using it to identify an offender, as it is still merely a statement of a witness' opinion about what he or she saw. Like all identification evidence, its weight or reliability will depend on such circumstances as the nature, length and memorable features of the witness' previous contact with the accused. In R. v. Bardales , Mr.

Justice Wood, albeit dissenting in the result, described the character and role of recognition evidence in this helpful manner: "With respect, I am of the view that there is no legal distinction between eyewitness identification cases on the one hand, and so-called recognition cases on the other. In both, the identification of the accused is based on the evidence of one or more witnesses who offer the opinion that is the person who I saw. Where it is a factor, recognition is a circumstance which does no more than enhance the weight to be attributed to that opinion by the trier of fact." ( R. v.

White 2013 BCSC 1553 per Smart, J., R. v. Pierce 2011 BCCA 485 ) And then paragraph 10 of White : While special care must be taken when assessing eyewitness identification evidence, even one based on recognition evidence, the reliability of an identification can be significantly enhanced when it is made by a witness who knew and could readily recognize the suspect prior to the event in question. This is a matter of common sense and is consistent with the cases provided to me by Mr. Patola on behalf of the Crown. These cases include R. v. Bob 2008 BCCA 485 , R. v. Arbuto 2008 BCCA 78 , R. v.

Ba 2009 BCCA 400 , and citations are provided. [ 18 ] The evidence in this case is that the two who physically engaged with Mr. Butler approached him, pushed and shoved him while taunting him with similar words. Punches were thrown by both, and Mr. Butler swung the dog leash which he held in his hand, striking one of the attackers on the hand. The dog was unleashed at the time. [ 19 ] I have noted that Ms. O'Neil said she recognized both Mr. Shu and Mr. Purcha as they approached. She said as they encountered the group, she looked Mr. Shu in the eyes. Ms. O'Neil said that she saw Mr. Purcha and Mr.

Shu approach Mr. Butler. First Mr. Purcha pushed him, using two hands to the chest, then Mr. Shu did the same. She said that she was only a matter of two to four feet away and observed this occur. They were under a streetlight illuminating the area. She was behind her mother somewhat at this point. Ms. Schoelch told her daughter to run. Ms. O'Neil ran off and did not see what followed. [ 20 ] These observations of Mr. Purcha's conduct and actions were not specifically challenged on cross-examination. It was never suggested to Ms.

O'Neil that she was wrong or mistaken as to who was present or whose vehicle arrived or which of the three males she saw approach and shove Mr. Butler. [ 21 ] The evidence of the assault from this point on is provided by the Butlers and Ms. Schoelch. Their evidence is generally consistent. The two perpetrators pushed and shoved Mr. Butler. Blows were swung at him by both males. Kicks were directed at him. He swung back to defend himself. He tripped and fell to the ground, landing on his back. The leash fell from his hand. The two males then jumped on him. Mr. Butler was able to turn over onto all fours.

The two males delivered kicks and punches to his shoulder, head, back and ribs. The witnesses are unable to say how many blows were delivered, but it is clear from all the evidence that in this position, Mr. Butler was vulnerable and not able to defend himself and took repeated blows. [ 22 ] Kathleen Butler and Michelle Schoelch each grabbed one of the attackers and tried to pull him off of Mr. Butler. Mrs. Butler picked up the dog leash and struck the male that she was attempting to pull off. The two males disengaged from Mr. Butler. The male Ms. Schoelch confronted kicked her twice in the leg.

The three males then began walking back the way they had come. The Butlers and Ms. Schoelch then began the process of knocking on nearby doors and seeking assistance. [ 23 ] It is difficult to say specifically how long this attack lasted. The time estimates provided by the Butlers and Ms. Schoelch, in my view, are somewhat uncertain and unreliable. This is to be expected, in my view, considering the trauma of an unexpected and unprovoked assault. It was not, however, in my view, a fleeting encounter. [ 24 ] Cst. Nikopoulos arrived on the scene at 9:53 p.m. He was dispatched from the detachment office nearby.

Eventually he was directed to Mr. Butler. Cst. Nikopoulos noted that Mr. Butler was limping and visibly shaken. It appears the constable was unable to obtain an immediate statement. [ 25 ] Mr. Butler suffered bruised ribs. His back was stiff and sore. His hand was sore and his knee was scraped. The evidence establishes that the attack was entirely unprovoked. There is no explanation as to why this group, or Mr. Butler in particular, would be

singled out and attacked. Nothing was said, nor was any gesture offered or other action directed towards the three males by the Butler group that would explain why this attack would have been directed at them. [ 26 ] The evidence establishes that Ms. O'Neil knew Mr. Purcha and Mr. Shu. Her mother, Michelle Schoelch, stated that she knew Mr. Purcha because her daughter had pointed him out on earlier occasions from the car, in a mall, or in similar circumstances. She identified Mr. Purcha as that person.

She stated that when her daughter told her to walk faster as the three males approached, she also said that it was Mr. Purcha and Mr. Shu who were coming. Ms. O'Neil confirmed in her evidence that she told her mother that it was Mitchell and "Yoshi," which is short for Joshua, who were behind them. [ 27 ] In her evidence, Ms. Sinkewich recalled the three males in her car were generally wearing dark clothing. She cannot recall the specific type of clothing they wore. Mr. and Mrs. Butler and Ms. Schoelch said the attackers wore generally dark clothing. Ms. O'Neil could not recall Mr. Shu's clothing. She thought Mr.

Purcha wore a white T-shirt. [ 28 ] Ms. Schoelch said the male standing off was darker-skinned, consistent with the third person, Marillio, described by Ms. Sinkewich. [ 29 ] The witnesses were all cross-examined about the timing of statements given to police and the detail or lack of detail in the description of attackers provided in those statements relative to the greater detail they provided at trial. [ 30 ] Mr. Butler gave statements later on the night of the attack and on February 22nd, 2012. Kathleen Butler gave her statement three weeks after the event.

Michelle Schoelch gave her statement on March 18th of 2012. Ms. Schoelch said that she was fearful about her daughter's safety and so did not initially provide a statement, and when she did, she did not say that she knew the attackers to be Mr. Purcha and Mr. Shu, although she asserted that she provided those names on February 22nd when she spoke to police at the Butler home. [ 31 ] Brooklyn O'Neil did not give a statement until August 23rd of 2013, just days before this trial. She agreed there was a date or dates arranged in March of 2012 for her to provide a statement, but she did not do so.

She said on the night of the incident, she provided the names over the telephone, but did not do so directly to police investigators. She agreed that since these events, she has had some limited contact with Mr. Shu, who attended her school, and that they have exchanged words on one occasion when he asked her for a lighter. [ 32 ] I find the evidence of the Crown's witnesses to be generally consistent. Their description of the lead-up to the attack, the initial confrontation, the attack itself, and its aftermath, is substantially consistent among the witnesses.

There are no major inconsistencies in these areas. [ 33 ] I note in cross-examination they agreed that they discussed the events and the descriptions of the attackers; however, I cannot draw from their evidence or their cross-examination that on essential points, their evidence, or any particular witness' evidence, was affected by that to the point that I could conclude it is no longer credible or reliable or should be disregarded. The fact they spoke to each other is reason to consider their evidence with that point in mind.

Having done so, I find no basis to question their general credibility or reliability. [ 34 ] I note the clothing descriptions given by the Butlers and Ms. Schoelch is generally consistent with Ms. Sinkewich's evidence that the accused and his friends wore dark clothing. Ms. O'Neil's evidence that Mr. Purcha wore a white T-shirt was somewhat tentative. In any event, that observation ultimately is not significant in my analysis.

There are no adverse conclusions to be drawn from the delay in the preparation of witness statements. [ 35 ] I recognize and accept that as a general observation, memory and recall is not as good one year after the event as it is on the date, or soon after the date, of the event. That may well be the case here. Some of the detail of description of attackers and details of other aspects of the encounter may not be specifically accurate, but I can assess the evidence from a more global view. The essential elements of the events are all consistently described by the witnesses.

There are no obvious anomalies in the evidence given or the versions provided from person to person that place in question the clear picture the witnesses collectively paint. No alternative version of what occurred to them was provided. Any suggestion of an alternative would be entirely speculative. [ 36 ] The real issue here is whether or not the Crown has proven beyond a reasonable doubt that Mitchell Purcha was one of those attackers. Ms. Sinkewich drove Mr. Purcha and Mr. Shu and a third male, all dressed in black, in her Mini Cooper to that location at about the time the Butler group was present. Ms.

O'Neil saw that car, which she knows, driven by Ms. Sinkewich, who she knows, arrive. The three males got out of that car and ran out of the sight of Ms. Sinkewich. Three males are seen and heard by the Butler group leave from the area of that vehicle and begin to follow them. They begin taunting Mr. Butler. Ms. O'Neil knows and identified the accused, Mitchell Purcha, as the first of the three to confront and shove Mr. Butler. She knows Joshua Shu, and saw him as the second person to confront Mr. Butler.

We know from all of the other witnesses that it was the two men who initiated the assault, who pursued that assault of Mr. Butler to its conclusion. The third person, on all of the evidence, did not participate. Ms. O'Neil knew those two males. She has described her past encounters, that she had seen Mr. Purcha just three weeks earlier, that she had a good opportunity, with lighting available, she made eye contact with Mr. Shu, and we know that Mr. Shu and Mr. Purcha were together and in the area at the time. Although Mr. Butler and Ms. Schoelch made identification of Mr.

Purcha in court, I consider the frailties of their observation and place little weight on it. It is Ms. O'Neil's recognition evidence which I find compelling here. [ 37 ] I find the evidence presented to be compelling, reliable and credible. The witnesses were not confronted with any other scenario. The identification of Mr. Purcha as the attacker by Ms. O'Neil was compelling. It is supported by the evidence of Ms. Sinkewich respecting her arrival at the same location with Mr.

Purcha and his two friends. [ 38 ] The Crown has presented a strong case on which I conclude there is no reasonable doubt that the accused, Mitchell Purcha, assaulted Scott Butler. [ 39 ] If you could stand, please, Mr. Purcha?

[ 40 ] I find you guilty on this charge. (REASONS FOR JUDGMENT CONCLUDED)