) ) Her Majesty the Queen ) D. Gray ) for the Crown ) ) v. ), 2013 MBPC 21

2013 MBPC 21 THE PROVINCIAL COURT OF MANITOBA Thompson Centre BETWEEN: ) ) Her Majesty the Queen ) D. Gray ) for the Crown ) ) -and- ) ) Johnnie KILBOURNE ) J. Robbins ) for the Accused Accused ) ) ) Reasons for Decision delivered on ) April 5 th , 2013 at ) Thompson, Manitoba ) THOMPSON, P.J., ACJ INTRODUCTION: [ 1 ] The accused, Johnnie KILBOURNE, is charged with indictable offences arising from an incident occurring at Oxford House, Manitoba on June 18, 2011.

A 13 count information, laid by the Crown alleges; - Aggravated sexual assault, two counts of sexual assault, kidnapping, choking to overcome resistance, uttering threats to cause death and two counts of anal intercourse; all against J.G.; and - Aggravated assault and forcible confinement as against B.C., as well as theft of his truck and mischief to it. OVERVIEW: [ 2 ] The Crown’s allegations can be summarized as follows: [ 3 ] J.G. arrived home around 4:00 am with a friend, B.C.. The only door to her house was still padlocked shut from the outside, just as she had left it.

After unlocking the house, they went inside. About two minutes later she was startled when Johnnie

KILBOURNE, the accused, stepped out of a bedroom. [ 4 ] She knew the accused, who until recently had been living in her home in a common-law relationship with her best friend and roommate R.C.. The accused and R.C. had a six month old child from that relationship. [ 5 ] The accused had moved out of their home several weeks before. Two days before the alleged incident, R.C. broke off her relationship with Mr.

KILBOURNE, when she learned he was having an affair with his long time girlfriend. [ 6 ] J.G. was surprised to see him, as the only door to the house had been padlocked from the outside, the lights inside the house were off and they were only in the house briefly. [ 7 ] The accused was angry and quickly became violent. He pulled out a large knife he was carrying, seized her cell phone and cut the arm of B.C.. He then forced B.C. and J.G. into a bedroom at knife point where he forcibly tied up B.C. on the bed. During this time, the accused was laughing and put out a cigarette on B.C.’s bare ankle.

He demanded J.G. remove her pants and when she refused he choked her with his hands until she could not breathe. He only stopped when she relented and said she would remove her pants. [ 8 ] In the presence of, and next to the bed on which the now tied up B.C. was laying face down, the accused sexually assaulted J.G.; raping her vaginally and anally. He also forced J.G. to perform fellatio on him. [ 9 ] After he finished sexually assaulting her, the accused bound B.C.’s feet and hogtied him. He then stabbed B.C. in the stomach.

J.G. fought him for control of the knife and eventually grabbed it, causing the accused to bite her hand until she let it go. She identified injuries to hand, depicted in police photographs numbered 79 to 81 (Exhibit 1) from the accused biting her. She identified the injuries to the palm of that same hand, in police photographs numbered 83 and 84 as being caused by the knife, when she unsuccessfully attempted to take it away from the accused. [ 10 ] B.C. was left hogtied, bleeding from his two stab wounds and locked in the house, which the accused padlocked from the outside.

He took the keys to B.C.’s truck and forcibly abducted J.G., taking her with him in the stolen truck. He threatened her if she attempted to stop and flag anyone down when they were driving he would “stab her again and again”. When the accused turned off the main road in Oxford House onto an exposed winter road, the truck became stuck in muskeg. [ 11 ] The accused then set fire to both the driver and passenger seats with his lighter, damaging the truck in an unsuccessful effort to burn and destroy it, laughing as he did so. [ 12 ] The accused left the truck, taking J.G. with him under threat.

Her sandals were left behind at the truck, leaving her with no footwear. He marched her through the bush for hours, forcing her to strip when crossing and swimming through standing water. [ 13 ] At a duck blind in the bush the accused sexually assaulted J.G. a second time, telling her he did not care because he was going to go to jail. He raped her vaginally and anally. He then caused injuries to her, tearing something when he forced his fist in her bum. She testified that she just blocked her mind during this assault.

She testified that she was injured from this assault, was bleeding, was incontinent for several days and eventually required surgery to repair her sphincter. [ 14 ] The accused kept her tied up, except while they were swimming. When they were swimming he threatened to drown her if she made the wrong move. He forced J.G. to remain with him in the bush and hide under the cover of trees when a civilian helicopter, assisting the RCMP’s search for them, flew overhead. At one point he found an old knife in a duck blind and used it to cut down tree branches.

She thought he was going to use them to cover her body after he killed her. [ 15 ] After many hours the accused led J.G. back to his grandfather’s house. When they arrived, she had no footwear, no pants and was wearing a black tank top as a makeshift skirt. His 16 year old brother, Julius KILBOURNE, was present. The accused told J.G. to shower. Although she ran water from the shower to make it appear she had showered, she did not wash herself thereby preserving the accused’s DNA on her body for testing.

[ 16 ] The accused took a shower and then forced J.G. to first phone R.C., and then to phone J.G.’ father. He told her what to say in an effort to make them both believe she had willingly gone with him and he had not harmed her. The scenario he told her to tell everyone was that “she was his girlfriend, they had been drinking, that he got the wrong idea about her and B.C. and that he woke up and stabbed B.C.”. [ 17 ] Eventually, the accused allowed J.G. to leave.

He expressed his doubt to her that she would stick to the script and threatened her that if she “screwed him over” he would get “his bros” (from the Native Syndicate gang) who “would not care if you were in your family’s home, they would just come in and shoot you”. [ 18 ] She was found by a passerby on the road and taken to the nursing station in Oxford House. She was treated before being medivaced to Thompson General Hospital for stabilization and treatment of injuries to her anus. Her injuries were so serious that she was hospitalized for several days.

Eighteen months later she was required to undergo reconstructive surgery of her sphincter, which had been damaged. [ 19 ] The accused hid from police, who arrested him the next day, hiding in the basement of a relative’s home. [ 20 ] At the three day trial of this matter on March 4 to 6, 2013 at Thompson, the Crown called 12 witnesses to support their case, including J.G., B.C., the medical doctor who treated J.G. in Thompson, the RCMP Corporal who took and recorded the accused’s statement, Margaret ROBINSON, the neighbour who found B.C. bound and bleeding and locked in J.G.’ house that morning, as well as the accused’s girlfriend, R.C..

The Crown tendered a number of exhibits, including a positive DNA test, matching the accused to the sexual assault test taken from J.G.. [ 21 ] The accused, Johnnie KILBOURNE, testified in his defence and also called his younger brother, Julius KILBOURNE, to testify. [ 22 ] The accused testified that he did indeed stab B.C. twice, however, he asserted it was in self defence after B.C. punched him first. He denied tying up B.C.. He admitted having vaginal and anal sex with J.G., but only in the bush many hours later.

He said it was consensual and that she initiated sex with him to exact revenge on R.C., who was now dating W.C., who was J.G.’ former boyfriend according to the accused. He denied forcibly taking her with him in the truck or the bush. He admitted lighting the truck on fire but claimed he later put out the fire when he had second thoughts. [ 23 ] He said he turned himself over to police after they could not find him in the basement of his relative’s house during the initial search.

The accused testified that his warned statement to police was false and that when he told police he had no memory of much of this incident, due to being high and intoxicated, that was not true. [ 24 ] He testified that he only said that he could not remember this incident because he wanted “To get the police off his back”. [ 25 ] At the end of the trial I reserved my decision so I could review my notes of the evidence, the exhibits and articulate my reasons. ISSUES: [ 26 ] The role of the Judge at trial is to be the finder of fact, based on admissible evidence.

Based on the evidence at trial, both for crown and defence, the Crown must satisfy the Court that they have proven all elements of each offence and that proof must be proof beyond a reasonable doubt.

[ 27 ] In a case such as this, where the accused testified in his own defence, Mr.

Justice Corey of the Supreme Court of Canada in a case called R. v W.D. identified a three step process to ensure the trier of fact remains focused on the principle of reasonable doubt when an accused testifies: (1) first, if you believe the evidence of the accused, obviously you must acquit; (2) second, if you do not believe the testimony of the accused, but you are left in doubt by it, you must acquit; (3) 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

ADMISSIONS: [ 28 ] At the outset of the trial counsel for the defence admitted date, jurisdiction and identity of the accused. [ 29 ] In addition, defence counsel admitted the voluntariness of the accused’s warned statement to police and waived his right to a voir dire, a decision that was justified by overwhelming evidence that the accused’s statement was voluntary. [ 30 ] A review of the DVD recording of the accused’s statement to police, as well as the transcript of his statement, made it abundantly clear his statement was given willingly.

At the outset, Cpl FARRELL confirmed with the accused that he had spoken to a lawyer, was satisfied with that advice and that he understood it. [ 31 ] He confirmed the accused had something to eat at the Detachment. He repeated the police warning to the accused telling him he did not have to talk to him, that the police could not force him to talk and he had certain rights. The accused confirmed he understood. He advised the accused that despite what he may have said to any policeman earlier he did not have to repeat it and that if he did say anything it could be used as evidence against him.

The accused replied by saying “Yeah I know”. He told the accused he would not promise him anything or threaten him, telling him if they ended up talking about what happened he wanted it to be voluntary and the accused’s information.

When asked by Cpl FARRELL if he understood all that, the accused confirmed he did and confirmed, when asked, that he understood his rights. [ 32 ] In light of the police warnings to the accused, the plain language explanation given to him of his rights by Cpl FARRELL and because this was recorded on DVD, this was, on the whole, a textbook example of how to take a legally admissible, accurate and voluntary warned statement.

Cpl FARRELL even told the accused at the beginning of his statement that he did not expect the accused to necessarily tell him everything that happened, even though he would like him to. [ 33 ] The accused testified at trial that the reason he told Cpl FARRELL he did not really remember anything after drinking at Denise SPENCE’S that evening was because he felt pressured and only made those comments to “get the police off his back”. [ 34 ] I make a finding of fact that the accused’s claim of being forced to give a statement to Police is not supported by the evidence.

The accused’s 1 hour and 53 minute statement to police taken in the afternoon was overwhelmingly voluntary and admissible as evidence against him. ANALYSIS:

General Nature of accused’s testimony: [ 35 ] There are many problems and contradictions with Johnnie KILBOURNE’S testimony at the trial. His warned statement to police, the testimony of other witnesses, including his brother who testified for the defence as well as the physical and medical evidence, all contradict his testimony. [ 36 ] The accused testified that his warned statement to Cpl FARRELL, where he stated he did not remember what happened that day, was false. This court starts with the knowledge that the accused is a self-confessed liar.

The lies he told to police were in response to a very serious investigation against him and were made after he was warned that anything he said in his statement could be used as evidence against him. Specific contradictions/problems with the accused’s evidence: Charges relating to B.C.: [ 37 ] The accused’s claim that he stabbed B.C. in self defence is not supported by any of the evidence. [ 38 ] Both B.C. and J.G.’ consistently described version that the accused made an unprovoked knife attack on B.C.. While the sequence of the events they described differed, the content of what they described did not.

Their evidence was not successfully challenged on a cross-examination. Their evidence that the accused tied up B.C., was corroborated by the evidence of Margaret ROBINSON. She was the neighbour who found B.C. locked in the house with his hands tied behind his back while bleeding from two stab wounds. The cloth used to bind his hands as well as the shoe laces used to bind his ankles were seized by police and were tendered as exhibits at trial. [ 39 ] The accused’s own words to police contradict his claim of self defence.

During his warned statement, Cpl FARRELL told him that B.C. said that the accused stabbed him in the arm and the accused tied him up . The accused replied “ Yes, I did that ”. (emphasis added) [ 40 ] When Cpl FARRELL asked him “Why did you stab B.C. then? Were you mad at him for some reason or was he . . .?”, the accused answered “That’s the thing, I don’t know”. Asked “You don’t know why you did that?”, the accused answered “No, but I believe that I did that”. [ 41 ] The accused says his statement to police was admittedly false. His testimony at trial is also unbelievable.

The fact that B.C. was found locked inside the J.G.’ home with his hands tied behind his back, leads to only one conclusion; that the accused tied him up, stabbed him and locked him inside the house. I accept the evidence of the complainant’s as truthful and reject the accused’s evidence.

His claim is not supported by facts or evidence. [ 42 ] I find as a fact that the accused tied up B.C., stabbed him two times, threatened to kill him and locked him inside J.G.’s house from the outside, leaving him injured and bleeding inside. [ 43 ] I find that the stabbing injuries to B.C., as described by him and as corroborated by the medical report in evidence, meet the legal definition of “wounding” as described in

section 268 of The Criminal Code . An aggravated assault is made out. Theft and burning of the truck: [ 44 ] I make a further finding of fact that the accused took B.C.’s truck, after stabbing him, tying him up and threatening to end his life. Any permission to use the truck was clearly obtained by force and under duress. He did not have valid permission to take the truck. [ 45 ] The accused testified he lit B.C.’s truck on fire, after it got stuck.

His admission, together with the evidence of J.G., which I do accept, along with photographs of the burned truck seats allows me to find as fact that the accused committed mischief to B.C.’s truck by setting it on fire. I do not accept the accused’s claim that he changed his mind and returned to put out the fire. That claim was not supported by any evidence, other than the accused’s word. His evidence on this point is not credible for the following reasons:

[ 46 ] J.G.’ who was present at the truck fire, made no mention in her testimony of his returning to the truck to put out the fire. She was not cross-examined on that point. I offered to have her recalled to be cross-examined by defence on several specific points raised by the accused’s testimony that were not put to her on cross-examination. She was not re-called. Per the rule in Browne v.

Dunn , I draw an adverse inference against the accused on this point. [ 47 ] It is also significant that in his warned statement to police the accused was asked “Well do you remember trying to start the truck on fire?” (He nodded no), “Why burn it?”, the accused answered “I don’t even remember doing anything like that”. [ 48 ] I make a finding of fact that the accused stole the truck and started it on fire. There is no credible evidence to support his self- serving claim he tried to put out the truck fire after he started it.

Charges relating to J.G.: [ 49 ] The accused’s claim that J.G. consented to sexual relations with him and left her house with him willingly and that her injuries were caused by “rough sex” is not supported by any of the evidence. [ 50 ] B.C., who was present at J.G.’ house, gave testimony consistent with her version of events and directly contradicting the accused. [ 51 ] Both J.G. and B.C. described how after he tied up B.C., the accused demanded she take off her pants. When she refused, he choked her into submission. Photographs of the front base of J.G.’s neck show red marks and scratching.

This physical evidence is consistent with and corroborates their joint testimony that she was choked. [ 52 ] Both J.G. and B.C. described how the accused raped her on the bed, next to B.C. who was tied up on the same bed. B.C. testified that although he turned his head away because he did not want to look, he could feel the bed moving up and down in a movement consistent with the accused forcing intercourse with her and after a short break, he described the bed moving again. After it stopped the second time, he testified that he heard the accused tell her to put his penis in her mouth.

When asked what made him think she was raped, he answered, “Because she was screaming”. He testified that the accused got off the bed and put on his pants. J.G., he said, was naked from the waist down. He described the accused having a cigarette and putting it out on B.C.’s leg. At that point, he said that J.G. fought the accused for the knife. [ 53 ] He testified that he heard J.G. screaming and saw that her hand was in the accused’s mouth.

After Johnnie KILBOURNE got the knife back in his hand, he testified that the accused turned toward him and described the expression on his face as “horrifying”; saying “he wanted to hurt us”. He testified that the accused, as he was waiving the knife around, told them “Give me one good reason why I shouldn’t kill you guys”. B.C. responded “my baby sister” and J.G. responded “My boys”. [ 54 ] Later when about to leave the house with J.G., the accused threatened to slit her throat if she made a scene and asked her if he should “Go and put him out of his misery”, referring to B.C..

When he heard that threat, B.C. testified that he did not look, as he “prepared himself for the unexpected”. [ 55 ] B.C. testified that while this was all going on, the accused kept talking about R.C. and was focused on who she was with and where she was. [ 56 ] B.C. and J.G. were interviewed and gave statements separately to police. They had no chance to collaborate with each other before giving statements to police. Despite differences in describing the sequence of events, which one would expect from such a traumatic incident, their statements consistently describe the same content.

That is because what they told the police is indeed what happened. Their statements were truthful. [ 57 ] This court makes a finding of fact that the accused forcibly raped J.G. as she and B.C. described. She did not consent. The

rape took place vaginally and anally and fellatio was forced. [ 58 ] Further, where the accused’s story differs from the testimony of J.G., regarding being forced to accompany Johnnie KILBOURNE in the truck and into the bush, I accept J.G.’ testimony for the following reasons: [ 59 ] The accused says that anal intercourse caused the injuries to J.G.’ rectum and anus. His testimony is not supported by medical evidence and testimony of Dr. SARKER. Dr.

SARKER’s uncontradicted expert opinion was that J.G.’s injuries and bruising to her anus were too severe to be caused by anal intercourse and rather were caused by the insertion of a large, rough object into her anus. Dr. SARKER’s opinion is consistent with the testimony of J.G. who said the accused shoved his fist in her anus, causing her injuries. [ 60 ] There are other problems with the accused’s story, specifically his own brother, Julius KILBOURNE, contradicts his story. Julius KILBOURNE testified for the defence.

It quickly became clear from his testimony, voice and body expressions, that he was loyal to his brother and as such, was very reluctant to give any evidence that might implicate Johnnie KILBOURNE in these crimes. This witness was at home when the accused and J.G. walked out of the bush after having gone missing for most of the day. [ 61 ] Examples of Julius’ efforts to make his evidence favourable to his brother are as follows: [ 62 ] Defence counsel asked Julius how J.G.’ mental state was when she arrived at the Kilbourne residence. Julius answered “Normal, she seemed normal to me”.

However, during cross-examination by the Crown he had to admit in his statement to police he told them something was wrong, she was acting “weirdly”, like something was wrong. He only admitted during cross-examination when confronted with his prior witness statement to police, that he told police that he thought something was wrong. This was because J.G. was not talking; that she just stood outside the house on the step after Johnnie came in and Julius had to say to her “Do you want to come in or not?”. [ 63 ] Other contradictions between Julius KILBOURNE’s evidence and the accused’s evidence emerged at trial.

When the accused was asked in his warned statement by Cpl FARRELL if anybody had talked to him prior to his arrest that morning to tell him what was going one, the accused nodded his head no. “No? They just told you the police are looking for you?” (nods no) “Not even that?” (nods no). In contrast to that statement, Julius KILBOURNE testified that when he met the accused and J.G. at the door of his house he told Johnnie KILBOURNE “The cops are looking for you”.

He testified that “Johnnie laughed at that”. [ 64 ] Julius KILBOURNE also directly contradicted the evidence of the accused who testified that it was J.G. that asked to take a shower and that he had replied “feel free, make yourself at home”. When asked on cross-examination, Julius testified that it was the accused, Johnnie KILBOURNE, who told her to take a shower. [ 65 ] I accept the evidence of Julius KILBOURNE that J.G. was acting strangely and that something was wrong. His evidence only came out reluctantly and during cross-examination, because it implicated his brother.

I also accept his evidence and make a finding of fact that it was the accused who told J.G. to take a shower, she did not ask. That is consistent with the accused’s own evidence that he believed she ran the shower but did not wash, as he could see no evidence of dirt in the tub after she left the bathroom. [ 66 ] The logical inference and one that I make, is that the accused tried to force her to shower, to remove any signs of his DNA which could be used to prove there had been sexual contact by him with her.

Fortunately, J.G. had the composure to pretend to shower, thereby preserving the accused’s DNA intact on her body.

It was later conclusively matched to the accused from the results of the police sexual assault kit. [ 67 ] Julius’ testimony also puts the lie to the accused’s claim that he was drinking home brew outside the house with J.G. for several hours before going inside. [ 68 ] That claim on its own, that J.G. would willingly have sex with the accused in the bush on the ground 20 yards away from the accused’s house, after watching him stab her friend B.C. two times, leaving blood all over her bed and the house and after following him through the bush for miles with no footwear, is nothing short of ridiculous.

Julius’ testimony puts the lie to it conclusively. His evidence to the Court was that Johnnie was sober when he came home. Julius KILBOURNE did not smell any home brew on the accused.

[ 69 ] Where the evidence of the accused is contradicted by his brother, Julius, I accept Julius KILBOURNE’s evidence. He had no motive to lie and the evidence he gave implicating his brother, came out reluctantly. [ 70 ] Finally the accused contended that he was invited inside J.G.’ house to visit and drink with her and B.C.. He raised the issue that when J.G. arrived home the only door to the house had been padlocked shut, as proof he could not have gotten in without her permission. [ 71 ] R.C., the accused’s ex-girlfriend, provided the answer to how the accused got inside the house.

The accused spoke to her by cell phone before he was arrested. In response to her demanding to know how he got in, he told her that he climbed in through the bedroom window. That is consistent with J.G. seeing him come out of a bedroom in her house. [ 72 ] I accept R.C.’s evidence as factual and true. [ 73 ] I find as a fact the accused was not invited into the house, rather he gained entrance without permission through a bedroom window. [ 74 ] To answer the questions initially posed by the case of R. v W.D. , I address the three step test as follows:

(1) I do not believe the evidence of the accused;

(2) The testimony of the accused did not raise a reasonable doubt;

(3) The evidence I do accept, convinces me beyond a reasonable doubt of the guilt of the accused: [ 75 ] I am satisfied that all of the essential elements of each count have been proven by the Crown beyond a reasonable doubt, with the exception of count one; aggravated sexual assault. [ 76 ]

Section 273.(1)the Criminal Code defines an aggravated sexual assault as one where the accused “wounds, maims, disfigures or endangers the life of the complainant.” [ 77 ] I find as fact that the injuries suffered by J.G., do not meet this specific legal definition. Dr. Sarker completed a rectal examination of her at the hospital in Thompson. He described her injuries as follows: her anus was swollen, bruised and very tender to touch. There were two lacerations he described as “superficial”, which could cause a small amount of bleeding. [ 78 ] This evidence from Dr.

Sarker falls short of what is required to prove wounding. They clearly did not maim or disfigure the complainant and there was no evidence that her injuries endangered her life. [ 79 ] As a result, I find the accused not guilty of aggravated sexual assault, but instead, guilty of the included offence of sexual assault causing bodily harm pursuant to

section 272.(1) of the Criminal Code of Canada . Clearly her injuries which required hospitalization and caused her to have surgery to repair damage to her sphincter meet the definition of “causing bodily harm.” Decision: [ 80 ] I find that the accused’s testimony at trial was entirely false. The accused’s actions were truthfully described by J.G. and B.C..

Their evidence is consistent with each other’s and is corroborated by the medical reports, known physical evidence as well as other independent witnesses, including Margaret Robinson and the accused’s brother, Julius KILBOURNE. [ 81 ] The accused’s motive for stabbing B.C. and abducting and sexually assaulting J.G. was clear to me. He was angry with the loss of his ability to control R.C., who had just broken off their relationship. He was upset that she was spending that night with another

man, just two days after breaking up with him. People at the drinking party he attended earlier that evening described him as withdrawn and not speaking. He was not his normal, outgoing personality. His anger that night is confirmed by Bonnie Harper who testified, when he called for a ride, he told her, “I really need to get the fuck out of here, pick me up right away”.

Further evidence of his anger and violent mood is confirmed when he got into a fight, for no apparent reason, with Ryan BRADBURN, his cousin and one of her passengers; a fist fight on the road which only stopped when she threatened to drive away and leave them. [ 82 ] The accused entered J.G.’ house and instead of finding his girlfriend, R.C., found her best friend, J.G. and B.C., a person with whom he had been violent with, in the past. He vented his anger and frustration by stabbing B.C., threatening his life and later by trying to burn his truck.

He also unleashed his anger and violence on J.G., because she was R.C.’s best friend and roommate. [ 83 ] I accept the testimony of R.C. that he inflicted this horrible ordeal on J.G. to get back at his ex-girlfriend. R.C. testified that when she asked the accused on the phone why he had done this to J.G. he replied “To take something precious from you”. [ 84 ] This is entirely consistent with the testimony of J.G..

She testified that during their ordeal in the bush, the accused told her that he wanted to hurt R.C. “by taking something precious from her”, an unusual turn of phrase and identical to R.C.’s testimony. J.G. testified that the accused said that to her over and over again. She believed he meant he would take her life. [ 85 ] I find as fact he did make that statement. It explains his motive for attacking J.G..

Even more disturbing is that the only logical inference I can draw from his testimony at trial, where he falsely claimed that J.G. initiated sex with him to get back at R.C. for starting a relationship with a person he described as her former boyfriend, is that the accused was attempting to drive the final wedge between these best of friends in one sick, last attempt to inflict pain on R.C. for leaving him. [ 86 ] Out of spite and a desire for revenge, he tried to destroy his ex-girlfriend’s friendship with J.G.. [ 87 ] The accused’s conduct throughout this incident and during his testimony at trial was disturbing.

It was chillingly devoid of human empathy, was centred solely on his needs and wants and was strikingly anti-social. This self described former Native Syndicate gang member, appeared incapable of telling the truth, even when faced with evidence directly contradicting him. [ 88 ] For example, when confronted with the testimony of Margaret ROBINSON who found B.C. tied up, something the accused could not explain away, he tried to suggest that she really could not say his hands were tied up.

That somehow B.C. calling out for help, yelling that he was tied up and appearing at the door with his hands behind his back, and her testimony that she saw his hands tied up, did not prove that he was in fact tied up. It was like he believed that just saying B.C.’s hands were not tied up, would make this critical evidence go away. [ 89 ] As a trial judge with 10 years of experience, I cannot help but red flag his behaviour as extremely unusual.

His conduct appears to meet many of the criteria that define a sociopath. [ 90 ] In conclusion, based on the above analysis, I find the accused not guilty of aggravated sexual assault, but guilty of the included offence of sexual assault causing bodily harm. On each of the remaining 12 counts, I convict the accused. _______________________________ Associate Chief Judge M.P. Thompson