R. v. G.S.B. Date:, 2013 BCPC 345

Citation: R. v. G.S.B. Date: 20130725 2013 BCPC 0345 File No: 198708-2-KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.S.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: B. Beram Counsel for the Defendant: M. Sandhu Place of Hearing: Surrey , B.C. Date of Hearing: May 27, July 17, 2013 Date of Judgment: July 25, 2013

[ 1 ] G.S.B. (G.B.) is charged with assault causing bodily harm. He is alleged to have assaulted H.K.M. (H.M.) on or about January 24, 2013. At the conclusion of the evidence I found G.B. guilty and promised to provide written reasons to explain my decision. These are my Reasons. [ 2 ] Photographs and the evidence of a police officer, combined with that of H.M., prove that she suffered bodily harm.

The issue is whether the evidence in the trial proves beyond a reasonable doubt that G.B. caused her injuries by assaulting her. [ 3 ] H.M. testified that G.B. pushed her down on cement and then pushed, punched and kicked her. He denied this. When questioned by his lawyer, G.B. said H.M. was drunk and fell down. When questioned by the prosecutor he added that she was hitting his window and door with her face and head. I must therefore assess the witnesses’ credibility and reliability. If I believe G.B.’s testimony or if it raises a reasonable doubt, I must acquit him.

If I reject his testimony and am not left in doubt by it, I must then consider whether the evidence I do accept satisfies me beyond a reasonable doubt that he is guilty. [ 4 ] In these Reasons I will first explain my assessment of the witnesses’ testimony, beginning with that of H.M.

I will then set out the facts I find to have been proven, and my conclusion. [ 5 ] In order to assess the credibility and reliability of the witnesses in this trial, I have considered a number of factors including: • their abilities to observe, remember, and communicate accurately; • any changes or contradictions within their testimony; and • whether other independent evidence supports or contradicts their testimony. [ 6 ] There were weaknesses in H.M.’s testimony but I nevertheless found her evidence that G.B. pushed her down on cement and kept her from getting up by pushing and striking her with his hand and foot to be compelling and believable.

For the reasons explained below the weaknesses in her evidence did not undermine her credibility or the reliability of her testimony that G.B. applied force to her. In addition, there was independent evidence that supported her testimony. [ 7 ] During her testimony H.M. often spoke in generalities. Her description of why she went to G.B.’s basement suite and what happened after G.B. pushed her down was vague and lacking in detail.

However, the lack of detail did not detract from her credibility because she appeared to be a reserved person who was clearly reticent about discussing matters she considered shameful, including sexual relationships and being beaten by a man. In addition, there was evidence from Cst. Lot, a Punjabi-speaking police officer experienced in dealing with Punjabi-speaking female complainants, that they usually exhibit shyness when reporting an assault, and that he observed H.M. to appear shy and ashamed about what had happened to her.

Moreover, it is not surprising that a person who was pushed down without warning, and was bleeding from her face while she received additional pushes or blows, would not observe or recall each application of force separately and in detail, particularly if the event was a painful, embarrassing one to recall. [ 8 ] Defence counsel, Mr. Sandhu, points to the fact that H.M. did not speak to police until a friend contacted them the next day. He suggests she might have concocted a story because she was embarrassed by having injured herself while she was intoxicated.

However, I find her reluctance to report the assault to be consistent with her being in pain from her injuries and feeling embarrassed and ashamed at being the victim of an assault. [ 9 ] H.M.’s account was internally consistent; she did not contradict herself or change her evidence. There was a minor discrepancy between her testimony and that of Cst.

Lot about the date of the incident, but it is not material because while she said January 25 th , the information alleges the assault occurred “on or about January 24 th ” and this would include the 25 th . [ 10 ] H.M. testified that she knocked on G.B.’s door; he opened it and pushed her down; and he then prevented her from getting up by pushing her and administering blows with his hand and foot. She denied drinking alcohol that day.

While there was no medical evidence about the cause of the abrasion on her knee, abrasions to the left side of her face, and cuts and abrasions on her nose, lips, and chin, all depicted in photographs taken on January 25 th , these injuries appear to be consistent with the application of force more than once. She had injuries to both the front and side of her face: to her forehead, cheek, both bridge and point of her nose, both upper and lower lips, and chin.

If she had merely fallen, as suggested by defence counsel on cross-examination, it would not explain the injuries to both her front and side. [ 11 ] G.B.’s account of what happened was not clear or coherent, and it changed from direct to cross-examination. At first he said that H.M. knocked on his door; then she struck his window, yelled and started hitting his door; she was drunk and fell.

Then he said when he approached the door she started hitting the window loudly; he opened the door and they argued; he called her daughter and said her mother’s yelling would disturb the neighbours; he stayed inside to wait for the daughter; when she and the landlord arrived he opened the door and went outside, and that’s when he saw H.M.’s injuries. However, in cross-examination he added that she was hitting herself with her head and face on the door and window, and that’s when he called her daughter. Then he said he didn’t know whether she hit the window with her hand or head because he was inside.

He said when he opened the door she had no injuries but when she started hitting herself she bled. Then he contradicted himself again and said he saw her hitting herself against the window glass. [ 12 ] I will assume that it is possible for a person to bang their face against a door or window with sufficient force to produce some of H.M.’s facial injuries, but this is certainly not common human behavior. Given the placement of H.M.’s facial injuries it would appear impossible, or at least extremely difficult, to produce them all by such banging, or even by such banging and a fall.

In addition, banging her head and falling would not account for the other injuries on her body that she described and symptoms of which Cst. Lot observed: injuries all over her body, particularly a painful upper torso and difficulty breathing.

[ 13 ] Finally, the actions G.B. described are not consistent with his testimony that he cared for H.M. If she were harming herself by banging her face on his window and door, he has the size and strength to stop her; yet he testified he stayed inside and called her daughter, leaving her to continue to harm herself. Given the significant inconsistencies and contradictions in G.B.’s testimony and the unlikelihood of a person banging their face against a door or window with sufficient force and positioning to cause injuries like H.M.’s, I reject his testimony.

I find it does not raise a doubt because it is so unbelievable. [ 14 ] But that is not the end of the matter. A criminal trial is not a contest as to who is telling the truth. Having rejected G.B.’s testimony and found it does not raise a doubt, I must still consider whether on the whole of the evidence I do accept the prosecution has proven him guilty. I find H.M.’s testimony, in combination with the photographs of injuries and the evidence of Cst.

Lot, to be sufficiently compelling to prove beyond a reasonable doubt that G.B. assaulted H.M. by pushing her down and applying other force, thereby causing bodily harm to her. [ 15 ] It is for these reasons that I found him guilty as charged. A.E. Rounthwaite Provincial Court Judge