R. v. Madit, 2019 MBPC 65

CITATION: R. v. Madit, Ayei & Madit, Kuol, 2019 MBPC 65 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Colin Soul ) ) for the Crown - and – ) MADIT, Ayei ) ) Eric Wishnowski for the Accused-and - ) ) MADIT, Kuol ) ) ) Christopher Gamby for the Accused ) Reasons for Decision ) Delivered: October 30, 2019 Mary Kate Harvie, P.J. Introduction [1] As a as a result of an incident on September 8, 2018, the accused Ayei Madit and Kuol Madit are charged, although notjointly, with robbery with a weapon, possession of a weapon dangerous to the public peace, and assault with a weapon.

After three daysof prosecution evidence, each accused elected not to testify and did not call evidence. Crown counsel argues that all charges have beenproven beyond a reasonable doubt. Defence counsel each argue that the accused should be acquitted of all charges, or alternatively,convicted of a lesser included offence. [2] After a voir dire, Crown counsel tendered the videotaped interviews and transcripts between each accused and WinnipegPolice Service (“WPS”) investigators.

The explanations provided by each accused through these statements must be assessed through theapplication of the well known test set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R.742. Defence counsel each argue thatthe statement of their respective clients are exculpatory, that the statements ought to be believed, or alternatively raise a reasonable doubt,particularly with respect to the mens rea of some of the offences.

Finally, they argue that specific elements of each offence are not madeout by the evidence. [3] Because the W.(D.) test requires an assessment of the evidence of each accused in the context of the case as a whole, it ishelpful to begin with an overview of the case. It is also important to remember that it is open to the Court to accept all, some or none ofthe evidence of any witness, and that the onus to prove all aspects of each offence rests with the Crown.

The Evidence of Complainant [4] The complainant Clayton Cordell testified that at approximately 1 a.m. on September 8, 2018, he walked to the Video Cellar, astore located approximately half a block from his residence, to purchase cigarettes. As he was returning to his home, he heard someonecall out to him, and saw two males on the sidewalk further down the street. As he passed these males, he was asked for a cigarette, andtold them that only had the one he was smoking. After passing them, he continued towards his house, when he heard footsteps behindhim and heard someone yell “Give me your shit”.

When he turned around, the complainant saw one of the males about 12- 15 feet awaypointing a cross bow and arrow at him as he yelled twice “I’ll shoot you”. The second male was holding what appeared to be a smallbat. Threats of this nature were repeatedly made to the complainant throughout the incident. [5] The complainant attempted to flee to his nearby home, but his previously injured knee gave out as he ran. As he grabbed afence for support, he was struck from behind by an object and fell to the ground.

The complainant was repeatedly struck and kicked onhis back and face, with one of the two males jumping on him, grabbing him by the throat and choking him. [6] The complainant testified that as he was being assaulted, he saw the second male with the cross bow in full draw aiming athim and yelling “I’m going to kill him”. The arrow was released but the complainant was not hit and in the confusion he did not seewhere it went.

As he fought to escape, the complainant essential worked his way out of his jacket, which was in the hands of one of theassailants, and was able to make it into his residence, where he contacted police. He was eventually taken to the hospital for his injuries,which were documented by photos tendered as exhibits in the trial.

[ 7 ] The complainant did not know either of the assailants. He described the individual with the cross bow as being a black male, wearing a hoodie, in his late teens or early twenties, and taller than the complainant who is 5’8”. He described the individual with the bat as being a black male who seemed older than the first male, perhaps in his mid twenties. He did not pick out either accused from a police photo line up and was not asked to identify anyone in Court. [ 8 ] There were some frailties in the complaint’s evidence. He candidly acknowledged that the incident occurred quickly.

It is not surprising that this impacted his ability to recall some details. Defence counsel do not contesting that an incident occurred, but argue that with the passage of time, the complainant has become entrenched in his belief as to certain details. They point, for example, to the complaint’s assertion that the police told him that he must pick someone from the photo pack, an assertion contradicted by the police. As such, they argue that the Court should have concerns as to the credibility and reliability of complainant’s evidence.

The Arrest of the Two Accused [ 9 ] WPS members attended to the area and were aided by the WPS helicopter “Air One”, which uses a thermal imaging camera to view and record items, such as people, that emit thermal energy.

The objects recorded on the video, which would be difficult if not impossible to see at night, can clearly be seen, although appear on video as a bright white object. [ 10 ] Aided by the thermal imagery camera, the WPS member assigned to Air One was able to observe two males in the immediate vicinity of assault, one of which appeared to be carrying a cross bow, walking down the street and eventually entering a house on Bowman Street. He was able to direct WPS members on the ground to the house, and immediately after their arrival to an individual running out the back of the residence.

After a foot pursuit aided by the canine unit, the accused Kuol Madit, was arrested. The second accused, Ayei Madit, was located in a bedroom in the residence, in bed “faking” sleep. [ 11 ] In the Bowman Street residence, the jacket belonging to the accused, with his photo identification in the pocket, was located in a main floor laundry room, along with a cross bow, an arrow holder and arrow, and a smaller than regulation baseball bat. A second arrow, missing its head, was located by another officer, as was the actual arrow head, in the immediate vicinity of the assault. W.D.

Analysis of the Statements [ 12 ] As previously indicated, both accused were interviewed on video by WPS members. Each statement is important to the prosecution as both accused place themselves at the scene of the assault. It is important to assess those statements separately and to determine if each statement can be believed or alternatively, raises a reasonable doubt about the involvement of the individual accused or about the specific elements of each offence.

The Statement of Ayei Madit [ 13 ] At the outset of the interview, Ayei Madit denied involvement in the incident, claiming that he had been at the residence for a BBQ and that he was actually sleeping when police located him. When he was confronted with the suggestion that his brother had admitted involvement and implicated him, that the Air One video tracked him and his brother, and that the weapons had been located in the residence, Ayei Madit reversed his original position, claiming “we got into a confrontation with somebody on the street.

There was no bat.” Consistent with the evidence of the complainant, he stated “It was over…Just, I don’t know, simple con—just…like… ‘Do you have a cigarette?’” He claiming the complainant “exaggerated” the story and had been disrespectful to him and his brother when they asked for a cigarette, which he said he was going to purchase for a dollar, and denied shooting the arrow at the complainant. He asserted that they were patrolling the neighborhood after the nearby home of a friend had been vandalized.

He eventually admitted that the complainant may have been struck with a bottle, or possibly a stick, and that he tripped the complainant when he was running away. He also eventually admitted to grabbing the complainant by the hoodie, but denied choking him. The Statement of Kuol Madit [ 14 ] The accused Kuol Madit also begins his interview by denying involvement in the incident, claiming he had previously lived at the residence on Bowman Street, that he had gone there to pick up some belongings, and that his brother was already there with a friend when he arrived.

Kuol Madit claims he heard someone say that the police had arrived, he fled the house as he wanted to avoid trouble. When confronted with existence of the Air One video, his story changed, denying that he was involved in the robbery but asserting that his brother was “wrestling with this guy.” He eventually acknowledged that his brother had a bow, although denied that it was used, and further commented that “If you find the bat, that’s because I picked up the bat.” He took the position that he was simply trying to break up a fight between the complainant and his brother.

He eventually admitted that the incident was “probably” caused by “the little conversation they had and then it just escalated from one thing to another”. [ 15 ] The statements both accused must considered as part of the W.(D.) analysis because the Court must consider the of the totality of the evidence. [ 16 ] Having carefully considered the videotape and the transcript of the interview between Ayei Madit and WPS members, I do not find that his denials, such as they are, can be accepted, nor do they raise a reasonable doubt as to his involvement in the robbery of the complainant.

His comments are internally inconsistent and totally illogical, changing as he is confronted with the evidence against him. They are comments whose sole aim is to minimize and excuse his own behaviour. Whether the topic is how the incident began, the weapon used, or the degree of his own involvement, I have no difficulty at all rejecting any comments which might vaguely be considered to be exculpatory.

I do accept that despite his minimization, his interview confirms that he was present at the scene of the incident. [ 17 ] With respect to the statement of Kuol Madit, I have no difficulty whatsoever concluding that his comments, insofar as they

amount to denials, cannot be believed, nor do they raise a reasonable doubt. While they clearly place both he and his brother at the sceneof the incident, and they confirm, to a degree, how the incident began, the remainder of his statement amounts to untruths, minimization,and excuses which frankly make little sense when considered in light of the evidence as a whole. Once again, I accept those commentswhich confirm his presence at the scene of the incident. The Third Prong of the W.D.

Test [18] Defence counsel argues that even if the Court rejects, as I have, the explanations put forth by each accused during their policeinterviews, the onus still rests with the Crown to prove all elements of the offence beyond a reasonable doubt. As such, I will review theevidence respecting each count as it relates to the individual accused. I note at the outset that Crown counsel does not seek to rely on the“Parties to an Offence” provisions of the Code, arguing that the offences are made out against each accused on the totality of theevidence.

Robbery with a Weapon [19] The offence of Robbery with a Weapon defined in Criminal Code s. 343. Robbery is committed when a person steals and usesviolence or threats of violence, or steals while armed with a weapon. This

section requires the Crown to prove the act of stealing in orderto sustain a conviction. It is not necessary for the Crown to establish that a weapon was actually used during the course of a robbery: seeTremblay v. Quebec (Attorney General) (1984), (QC CA), 43 C.R. (3d) 92 (Que.C.A). [20] The Crown argues this offence is made out with respect to both accused. With respect to Ayei Madit, Crown counsel arguesthat his statement confirms not just his involvement in the incident, but the fact that he was in possession of the cross bow at the time thecomplainant was attacked.

He notes this is consistent with the evidence of the complainant. Crown counsel further argues that even ifthe Court accepts the version of events put forward by the accused, he is still guilty of the robbery as he admits to participating in theincident while armed with the cross bow. Similarly, with respect to Kuol Madit, counsel acknowledges that the complainant was unableto specifically say that he was struck by a bat. Given that he was armed immediately prior to the incident, Crown counsel argues thatlittle turns on this point.

He urges the Court to accept the complainant’s version of the events. [21] The Defence counsel each argue that the evidence as a whole falls short of establishing a robbery. Given the descriptionprovided by the complainant that he essentially escaped from his jacket to get away from the altercation, which Ayei Madit claims beganwhen the complainant disrespected him after his request for a cigarette.

They argue that the evidence falls short of proving beyond areasonable doubt that each accused had the intent to steal. [22] Further, counsel argue that there is some evidence to suggest that each accused was intoxicated at the time of the offence, andthat their state of intoxication must be assessed when considering the issue of whether they had the requisite mens rea for robbery.Counsel for Ayei Madit points to the dramatic change in his demeanour between the time of his arrest and the time of his interview.Counsel for Kuol Madit points to his admission of drinking and to the change in his client’s “speech pattern” during the interview. [23] They also challenge the weight of the complainant’s evidence, raising issues with respect to the complainant’s credibility andhis reliability.

As well, they challenge the weight to be attached to the comments made by their respective clients during the policeinterviews. [24] I have no difficulty accepting the evidence of the complainant as to how the incident occurred. Certain aspects of his evidencewere affected by the trauma of this incident, that the robbery occurred quickly, and that it happened over a year prior to his testimony.This is all to be expected. I found that the accused was a credible witness that did not embellish his evidence.

There is no credibleevidence to suggest that there were any words or behaviour on the part of the complainant that may have instigated this altercation. [25] Nor am I satisfied that there is any credible evidence to suggest that either accused was intoxicated at the time of the robbery. Iam aware that a number of hours passed between the incident and the police interviews. However, in his police interview, Ayei Maditdenies drinking.

Kuol Madit admits to having had “a few shots of tequila” prior to the incident, but specifically tell the officers “As youcan see, I’m not drunk, I’m not intoxicated”. [26] Defence counsels’ argument regarding the lack of intention to steal fails to take into account the comments made to thecomplainant just prior to the incident (“Give me your shit”), it ignores the fact that one of the accused actually took the complainant’sjacket after he was assaulted, and that the jacket was recovered (along with the weapons) in the residence where one accused wassleeping and the other was fleeing. [27] Given all of the foregoing, I have no difficulty concluding that both accused are guilty of the offence of robbery with a weapon.

Assault with a Weapon [28] The evidence supporting this count is essentially the same as with respect to the count of robbery. Each accused is alleged tohave committed an assault with a distinct weapon- Ayei Madit with the cross bow and Kuol Madit a baseball bat. The elements of theoffence are set out in Criminal Code s.267. It is not necessary for the Crown to establish that the weapon actually caused injury to thecomplainant. [29] Based on the now-accepted facts, I am satisfied that this offence has been made out with respect to each accused.

I accept thatthe accused Ayei Madit possessed a cross bow prior to the assault, that he aimed and fired it in the direction of the complainant, and thatthese acts were accompanied by threats. I am satisfied that the accused Kuol Madit was in possession of a small baseball bat immediatelyprior to and during the time that the complainant was assaulted. It is not necessary for the evidence to establish that Kuol Madit actuallyused the bat as part of the assault. I accept the evidence of the complainant that while he was being assaulted by one accused, the otherwas pointing a crossbow, who we know to be Ayei Madit.

By process of elimination, Kuol Madit must have been the assailant who wasstriking him with an object.

Possession of a Weapon for a Purpose Dangerous to the Public Peace [ 30 ] This offence is defined in Criminal Code s. 88 . Crown counsel must establish the purpose for which the accused had the weapon at a time which precedes its use, and ought not to rely on actual use of the weapon as proof of its unlawful purpose. To that end, Crown counsel acknowledges that the evidence against the accused Kuol Madit is somewhat weaker than against Ayei Madit.

Regarding the latter, he points to Ayei Madit’s admission that he was carrying the cross bow prior to the incident, claiming to be patrolling the neighborhood for those responsible for damaging a local house. In his dialogue with the officers, the accused noted that “it’s a bow.

Like it will scare somebody more than anything.” He also claimed to have tried the bow out, having fired an arrow before the incident. [ 31 ] Taking into account the foregoing, I am satisfied that evidence establishes beyond a reasonable doubt that the accused Ayei Madit is guilty of the offence of possession of a weapon for a dangerous purpose. I am not satisfied all elements of this charge have been made out against the accused Kuol Madit.

Conclusion [ 32 ] I have no difficulty concluding on the totality of the evidence that the complainant was the victim of a robbery, that the crossbow was fired during the course of the robbery, and that the complainant was repeatedly struck and that his jacket was forcibly taken from him. I am satisfied that the complainant was threated prior to and during the incident. I am also satisfied that the accused Kuol Madit was in possession of a small baseball bat and that he actively participated in the robbery by striking and kicking the complainant.

The evidence of the complainant, considered alongside the evidence of the WPS members and the videotape taken in the Air One helicopter, and the physical evidence recovered from the scene where the two accused were arrested, along with their statements, establishes the offences of robbery with a weapon and assault with a weapon against both accused.

The accused Ayei Madit is also convicted of the offence of possession of a weapon for a purpose dangerous to the public peace. [ 33 ] Pursuant to an agreement between counsel, the issue of whether any of the offences should be the subject of a stay of proceedings pursuant to the Keinapple principle can now be addressed. “Original signed by” M.K. Harvie, P.J.