R. v. Presley Date:, 2015 BCPC 61

Citation: R. v. Presley Date: 20150212 2015 BCPC 0061 File No: 200310-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRAHAM MATHEW PRESLEY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: A. Lee Counsel for the Defendant: M. Nohra Place of Hearing: Surrey , B.C. Dates of Hearing: July 28, 29, 30, December 8, 22, 2014; February 3, 2015 Date of Judgment: February 12, 2015

Introduction [ 1 ] 30-year-old Graham Presley punched an intoxicated 56-year-old man – Steven Menzies – while they were at a restaurant in Tsawwassen, knocking him to the ground and briefly rendering him unconscious. The Crown also alleges that the defendant kicked Mr. Menzies as he lay on the ground. He stands charged with the offence of Assault Causing Bodily Harm. [ 2 ] Mr. Presley admits that he punched Menzies once, but denies kicking him. He further asserts that he was merely defending himself after Mr.

Menzies pushed him and then threw a punch at him. [ 3 ] This case involves a sudden unexpected act of violence which occurred within a few seconds. As happens in most such cases, the witnesses at this trial gave varying, and sometimes conflicting, versions about what happened. My main task in this judgment will be to assess or weigh that testimony to determine whether there is sufficient reliable and credible evidence to prove the defendant’s guilt. The legal rules which must be applied to that evidence are not in dispute.

Applicable Legal Principles [ 4 ] The fundamental principle in all criminal trials is that the Crown bears the burden of proving the guilt of the accused to the standard of beyond a reasonable doubt. The accused is not required to prove that he is innocent. The term reasonable doubt cannot be defined with precision. The Supreme Court of Canada has said that while the Crown is not required to prove guilt to a standard of absolute certainty, it must, however, do more than prove that an accused is probably guilty.

The concept of reasonable doubt lies somewhere closer to absolute certainty than it does to mere probability. [ 5 ] The defendant testified in this case. The law requires that I approach his testimony as follows:

(1) If I believe his testimony, I must acquit.

(2) If I do not accept his testimony, but it nonetheless leaves me with a reasonable doubt I must acquit.

(3) If I reject I his testimony, I can only convict the defendant if, upon assessing all of the other evidence in the case, I find that the guilt of the defendant has been proved beyond a reasonable doubt. [ 6 ] The Criminal Code defines an assault as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to the other person directly or indirectly; or (

b) he attempts or threatens by

an act or gesture, to apply force to another person if he has, or causes that other person to believe, upon reasonable grounds that he has, present ability to effect his purpose; [ 7 ] Thus, a person who throws a punch at another, but does not actually make contact with the other person, may still commit the offence of assault. Self-Defence [ 8 ] The Criminal Code has recently been amended to clarify the law relating to self-defence, but the basic principles have been the same for many years.

Section 34 of the Code states: 34

(1) A person is not guilty of an offence if: (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. [ 9 ] That is, a person who strikes another, without that person’s consent, commits an assault, but is not guilty of assault if that blow was struck in self-defence. However, the person acting in self-defence must use force that is reasonable in the circumstances. [ 10 ] Section 34 (2) sets out some of the circumstances a court must take into account in deciding whether the force use was reasonable.

These include: 1) the nature of the force or threat; 2) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; 3) the defendant’s role in the incident; 4) the size, age, gender and physical capabilities of the parties to the incident;

(5) the nature, duration and history of any relationship between the parties; 6) the nature and proportionality of the person’s response to the use or threat of force. [ 11 ] A person who claims to act in self-defence cannot use force that is disproportionate to the force or threat of force used against him. However, he cannot be required to measure precisely the force used in response to an assault or threat of an assault. [ 12 ] An accused person is not required to prove that he acted in self-defence.

However, an accused person must be able to point to evidence, including his own testimony, which provides an “air of reality” to the defence. That is, there must be some evidence worthy of being considered or assessed by the court in the sense that it could, if believed, constitute self-defence. [ 13 ] The accused person has the burden only of persuading the court that the issue of self-defence should be considered by the court.

If the accused person satisfies that burden, then the burden is on the Crown to establish to a standard of beyond a reasonable doubt that the accused person was not acting in self-defence. Circumstances [ 14 ] This incident occurred on February 17, 2013, at around 12:45 a.m. at Brown’s Social House, a restaurant in Tsawwassen. The defendant had been there since about 10:30 or 11:00 p.m. with a group of friends who occupied a couple of tables in the restaurant. It does not appear that any of them was intoxicated. [ 15 ] The complainant, Mr. Menzies, arrived at the restaurant between 12:15 and 12:30 a.m.

He had been at a friend’s birthday party at a nearby hotel. He decided to go to the restaurant’s bar to have a drink while waiting for his son to come and pick him up. He was joined by Michael Watson, a person whom he met at the party. The evidence is clear that they were both intoxicated. Crown Witnesses [ 16 ] The Crown called three witnesses who were present when this transaction occurred – Michael Watson; Michael Nowakowski, the bartender working at Brown’s that night, and Steven Menzies. Watson and Nowakowski testified about their observations concerning the incident. Mr.

Menzies had no recollection of what happened. [ 17 ] Michael Watson attended the same birthday party that Mr. Menzies attended. They did not know each other before this and struck up an acquaintance at the party. They both had an interest in fishing. After the party had ended, Mr. Menzies went to the bar at Brown’s, sitting on a stool at the end of it. Mr. Watson joined him soon afterwards. He sat down beside Mr. Menzies, and they continued their conversation about fishing. [ 18 ] Watson agreed that he was intoxicated, although he disagreed with a suggestion that he was grossly intoxicated. [ 19 ] Mr.

Menzies purchased a drink for himself and for Watson. As they were sitting and talking, Mr. Watson said that Menzies made a comment to a man who had come to an area close to them to pay his bill at the bar. He said that Menzies made some sort of mocking or insulting comment about the shirt that the man was wearing. The man left but returned within a few minutes later and spoke to Menzies. Watson recalls that the man asked Menzies if he liked fishing and whether he fished sitting down or standing up.

Menzies said, standing up, and the man replied that this was interesting because it must be difficult for him because he was such an old man. He left. He returned a third time, a few minutes later. [ 20 ] Watson testified that the man approached Menzies and said something like: “I don’t like you.” The next thing he knew, Menzies was out of his chair and the two men were in what he described as a “hockey fight.” He meant by that the kind of fight where each combatant has grabbed the other by an

article of clothing and perhaps throws a punch or two. He also believed that both men threw punches at each other. He could not say how many or who threw the first punch. [ 21 ] Watson said that he looked over to the area where the man’s friends were to see if anyone was coming to assist the man. When he looked back, he could see that Menzies had fallen to the floor. He said that the man was delivering blows to Menzies, head and body, which were either punches or kicks. He did not see where the man went.

In Watson’s words, he “disappeared.” He remembered a woman sitting over Menzies and hitting him, performing some sort of CPR, something which Watson believed was the wrong thing to do. He thought that this person had said she was a nurse. Eventually, Menzies regained consciousness and was taken to the hospital. [ 22 ] Watson said that he believed the man who struck Menzies was the same man whom Menzies had insulted concerning his shirt. That is, it was the same man who had interacted with Menzies on the other two occasions. [ 23 ] He gave only a vague description of the person to whom Menzies had spoken.

He said he was a young male, about 24 years old, 5’9” tall and perhaps 190 pounds. He claimed that he was wearing a shirt with a logo “KC” on it, perhaps designating Calvin Klein. [ 24 ] Several serious weaknesses in Watson’s testimony were revealed on cross-examination. My observation was that he had great difficulty in remembering what happened and relied extensively on his statement made to the police. [ 25 ] In the transcript of the recording made of his statement by the police, it is apparent that Mr. Watson was both upset and confused. After an officer had begun questioning Mr. Watson, Mr.

Watson asked that the recording be turned off. His comments to the officer do not make a lot of sense. After some time had passed, the officer returned to his interview of Mr. Watson. [ 26 ] Second, Mr. Watson made no mention of seeing the man deliver blows or punches to Menzies until he was asked a leading question by the officer. The officer asked him if there were “any kicks or punches” delivered to Mr. Menzies after he hit the ground. Mr. Watson then said there were. [ 27 ] Third, Mr. Watson also said in cross-examination that he looked away after the fight started. He said that when he looked back

there was a woman performing CPR on Menzies. That is, this version of events would make it extremely unlikely that he saw the man deliver any blows to Menzies, because he had moved away from the scene by then. [ 28 ] Fourth, the description of the man provided by Mr. Watson certainly did not fit Mr. Presley who is 6 foot two inches tall and weighs 200 pounds. Watson’s description more closely fits the description of the bartender that night, Michael Nowakowski. [ 29 ] Michael Nowakowski was the bartender at Brown’s that evening and early morning. He was also the bar manager. He knew Mr.

Menzies as a regular customer and knew Mr. Presley because they went to the same high school. Mr. Presley had also been in Brown’s before. [ 30 ] It appears that Mr. Nowakowski was very busy. He poured and served drinks, dealt with customers paying their bills. He recalled Presley paying his bill shortly before the incident, by paying it at the bar and using the terminal for debit or credit cards. At that time, he believes that he saw Menzies and Presley have some sort of conversation but he did not overhear any of it. [ 31 ] He next recalls Mr. Presley’s wife calling out “Mike” trying to get his attention.

She moved her head suggesting he should move forward towards her near the end of the bar. At that point, he saw Mr. Presley punch Mr. Menzies once in the face. Menzies fell to the ground. He did not see anything that led up to the fight, and did not overhear any conversation or other vocalizations by either Presley or Menzies, which occurred before the fight. He just saw the punch. [ 32 ] He also testified that he saw Mr. Presley kick Mr. Menzies in the upper torso and possibly in the neck or head area. Presley left, but Mr.

Nowakowski recalls that he came back a few minutes later, staying briefly and then leaving again. Mr. Nowakowski called 911 to report the incident and to get medical attention for Mr. Menzies. [ 33 ] He recalled serving drinks to Mr. Presley’s table, but could not say what Mr. Presley drank or how much. He was unable to say whether Mr. Presley was intoxicated; he certainly didn’t notice anything which suggested that he was. He believed that Mr. Menzies was intoxicated. [ 34 ] Mr. Nowakowski impressed me as a very careful, honest and fair-minded witness.

Nonetheless, some of his replies in cross- examination cast doubt on the reliability of his observation that Presley kicked Menzies. [ 35 ] First, Mr. Nowakowski did not mention seeing a kick when he reported this event on his 911 call. His answer to that point was that the person receiving the call did not ask anything about kicking. It is, however, a fair question to ask why he would not remember something is significant as Presley deliberately kicking a defenceless man lying on the ground. [ 36 ] Second, when Mr.

Nowakowski gave his statement to the police very shortly after they had arrived, he made no mention at all about seeing Presley kick Menzies. One would think that with this event, being very fresh in his mind, he would make sure that he told the police everything important that he saw. Certainly seeing someone kick a defenceless man would be important. [ 37 ] Third, in a subsequent statement to the police in May 2013, Mr. Nowakowski did say that he saw Mr. Presley kick Menzies, both in the body and perhaps to the neck or head area. He acknowledged that he had spoken about the event, both with Mr.

Menzies and others, and that he had seen a picture of Mr. Menzies depicting bruising to his neck and face, taken at the hospital. [ 38 ] Fourth, Mr. Nowakowski agreed that after he saw Presley punch Mr. Menzies, his first reaction was to go to the back of the bar to phone 911. His testimony was that he did so almost instantaneously. That calls into question what opportunity he had to observe Presley after he punched Menzies. [ 39 ] Steven Menzies also testified. He is 57 years old. He lives and works in Tsawwassen, where he has operated his own business for many years.

He is a large man, about 6’1” tall and weighs about 280 pounds. He was an accomplished athlete in his younger days, and also worked as a bouncer. As with all of us as we age, the years have taken their toll on Mr. Menzies. He is no longer the imposing physical specimen that he no doubt once was. Nonetheless, he still cuts an imposing figure, appearing to be someone who still has considerable strength. [ 40 ] Mr. Menzies has no memory of this incident. He recalls leaving his friend’s party and going to the bar at Brown’s to wait for his son to come and pick him up. He remembers Mr.

Watson joining him and recalls purchasing drinks for both of them. He recalls speaking briefly with his wife, who left the restaurant to answer her cell phone. He next remembers waking up on the floor with a firefighter attending to him. [ 41 ] There is no doubt that Mr. Menzies was quite intoxicated. The parties filed a report by an expert on the absorption and elimination of alcohol and the effect of alcohol on the human body, the brain and its effects on behaviour. The expert extrapolated the results of the tests of Mr. Menzies’ blood/alcohol level taken at the hospital.

His blood/alcohol level at the time this incident occurred was somewhere between 191 and 213 mg of alcohol per 100 mL of blood. That is, 2½ times the legal limit for driving. [ 42 ] Any person with that blood alcohol level would suffer from a number of adverse effects, including: difficulty in walking, turning, and with balance. No doubt there would be mental confusion and delayed reaction time. It could also result in loss of attention, poor judgment, as well as perception, and could result in mood swings.

The expert further said: “individuals at these levels are less able to foresee and evaluate the consequences of their behaviour due to alcohol induced disruption of information processing in the brain.” [ 43 ] Mr. Menzies suffered significant injury from this incident, including: (1) a blood clot between the scalp and skull in the back of his head; (2) bruising and swelling around his jaw, extending down his neck; (3) reduced range of motion in his left shoulder;

(4) a 4 x 4 cm swelling on his skull; (5) severe dizziness and light-headedness when he changed his posture or moved his head; (6) reduced range of motion of his left shoulder; (7) pain in his left arm when gripping with his left hand. [ 44 ] Mr. Menzies indicated that he was, not surprisingly, very concerned about what had happened to him and wanted to know the details. He discussed the incident with a number of people several times. Defence Witnesses [ 45 ] The defence called five witnesses, including Mr. Presley, who were present at the restaurant when this incident happened.

One of them, Matthew Barkley, said that he actually saw the confrontation between Presley and Menzies. [ 46 ] Presley, his wife and a number of other people had gathered at Brown’s for an impromptu social occasion. They were all friends who had not seen each other for some time and used this opportunity to socialize and catch up. [ 47 ] Two young women, Nahanni Latimer and Kristy Schwabe, were part of that group and were the first to attend to Mr. Menzies when he was knocked to the ground. Nahanni Latimer was just finishing nursing school at this time.

She took no particular notice of Presley, other than to say that he was not intoxicated and seemed, like the others, to be having a good time socializing. At some point, she heard a commotion and looked in that direction. She saw a man lying on the floor. [ 48 ] She saw that someone was trying to give CPR to the man – Mr. Menzies – but was going about it completely wrong. In any event, she told the woman who was trying to help Mr. Menzies to stop because it was doing no good. It was clear that he did not have a heart attack. Mr. Menzies began waking up, but Ms.

Latimer told him not to move, to stay where he was, but he got up anyway. He appeared to be confused. Very soon, it was apparent that Mr. Menzies was angry about what happened to him, and he expressed his intention of getting the man who hit him. [ 49 ] Ms. Latimer did not see the confrontation between Presley and Menzies and did not see where Presley was when she heard the commotion. [ 50 ] Kristy Schwabe was the woman who tried to perform the misguided CPR on Mr. Menzies. She did not see what caused Mr. Menzies to fall to the ground, but heard it.

She rushed almost immediately over to him, believing that he had suffered a heart attack. Basically, she said that she panicked and tried to help him. It was clearly the wrong thing to do and eventually she stopped at the insistence of Ms. Latimer. [ 51 ] Neither Ms. Latimer nor Ms. Schwabe saw Mr. Presley when they went over to Menzies. Both of them went over to his location quite quickly after he had fallen to the ground. Ms. Schwabe had been paying her bill at the time so she was very close to the place where Mr. Menzies fell.

That is, she got over to him very quickly. [ 52 ] Cole McClay, another member of the group, was also very close to Menzies when he was knocked to the ground. He confirmed that Ms. Schwabe went very quickly over to Menzies and in a somewhat hysterical manner started pounding on his chest in her misguided attempt to save him. Mr. McClay said that she was hysterical and was hitting Menzies quite hard. He also went quickly over to where Menzies was. He did not see Mr. Presley and certainly did not see him kick Menzies. [ 53 ] Mr. Presley is 32 years old and has been a plumber for eight years.

He is 6’2” and was 200 pounds. [ 54 ] He testified that on February 16, 2013, he went to Brown’s social house with the intention of meeting up with some good friends whom he hadn’t seen for some time. He had had a few drinks at home before he went to the restaurant. He and his wife got there between 10:30 and 11:00 p.m. He said that he did consume some alcohol, but was for all intents and purposes, sober. He said he spent most of his time socializing with his friends, moving between the two tables that they occupied. [ 55 ] He does not know Mr.

Menzies and denied that he had any conversation with him during the evening. That is, he denied that he had some discussion with Menzies when Menzies made a nasty remark about the shirt he was wearing and he denied making some nasty remark later to Menzies about how old he was. He does recall, however, that sometime before the incident that he was on the way to the bathroom when he bumped into Menzies. He said that Menzies became upset with this contact and called him an asshole. He went on to go to the bathroom and then returned to the table. He thought no more about the bumping incident. [ 56 ] Mr.

Presley said that he paid his bill and returned to his table to get ready to leave. He said that he looked over to where Menzies was seated and noticed that Menzies was glaring directly at him. He could not understand why Menzies would apparently be so angry at them and would be giving him such an aggressive stare. He decided to go over and talk to him about it.

His rationale for doing so was that Tsawwassen is a small town and that it would be important to sort out what was wrong because he would likely see Menzies again. [ 57 ] He said that he walked over to where Menzies was seated and said something like, excuse me. He said that Menzies quickly stood up from the chair and pushed him. Mr. Presley said that he pushed Menzies back, at which point Menzies took a swing at him. Presley said he ducked, and that Menzies intended punch missed him. Presley said that then he replied by punching Menzies in the face, knocking him down. [ 58 ] Mr. Presley said that he then left.

He denied kicking Mr. Menzies. He indicated that he was upset by what happened. And after being outside for a few minutes, he returned to the restaurant to see how Menzies was. Once he went inside, Mr. Watson saw him and told him to leave. Presley thought it best to leave, so he did. He went home. Mr. Presley denied that he was wearing a T-shirt with

a logo KC on it. [ 59 ] Matthew Barkley, a friend of Presley’s, was also present at this occasion. He is employed as a firefighter in Richmond. He also indicated that he did not believe that Mr. Presley was intoxicated, but was rather having a good time socializing with friends. Mr. Barkley said that he himself had consumed only a few drinks during that evening and early morning. [ 60 ] He said that everyone, including Presley, was in a good mood. At the end of the evening, when they were getting ready to leave, he was standing there talking with Presley.

He said that Presley pointed out Menzies to him because he said that Menzies was staring at him – that is, Mr. Presley. Barkley said he looked and noted that Menzies was indeed staring or glaring at Mr. Presley. It was a nonstop stare. Mr. Barkley said that Presley told him that he was going to go over and talk to the man. [ 61 ] Barkley said that he watched as Presley walked over to Mr. Menzies. He could not hear anything that was said between them. He said that Mr. Menzies stood up from his seat and shoved Mr. Presley. Mr. Presley shoved back.

Then, he said, Menzies took a swing at Presley, who evaded it by ducking. Then he said Presley struck Menzies once in the face, knocking Menzies to the ground. He said that Mr. Presley did not strike Menzies again. That is, he did not kick him as he lay on the ground. He said that he had a good vantage point and would not have missed seeing Presley kick Menzies. [ 62 ] Barkley said that he went over to Mr. Presley. He said that the man with Menzies, that is, Mr. Watson, was shouting at Presley to get out. Mr. Barkley said that he took Mr. Presley outside.

Afterwards, they went back inside only to be told by Watson to leave, which they did. [ 63 ] Cross-examination of Mr. Barkley and Mr. Presley did not reveal any significant contradictions or inconsistencies in their evidence. Discussion [ 64 ] I have concluded that there is an “air of reality” to Mr. Presley’s claim that he acted in self-defence. That is, there is evidence before the court, which may provide him with a successful defence. Of course, I must evaluate all of this evidence to determine what weight I should give to it, but it is certainly not evidence that I can reject out of hand.

I must consider it. [ 65 ] Having decided that there is an air of reality to this argument, the issue becomes whether the Crown has proven, to the standard of beyond a reasonable doubt, that Mr. Presley was not acting in self-defence. [ 66 ] The essence of the Crown’s case is that Mr. Presley kicked Mr. Menzies several times after he had been knocked to the ground. The point is that if he did this, Mr. Presley was not acting in self-defence in kicking a helpless man lying unconscious on the floor. In addition, the argument can be made that the punch accompanied by the kicks constitute one unlawful attack on Mr.

Menzies, or if Presley was acting in self-defence to start off, kicking constitutes unreasonable or excessive force. [ 67 ] Mr. Presley denies kicking Menzies at all. Therefore, it is necessary to examine the evidence which was tendered to prove that he did kick him. [ 68 ] Mr. Watson’s testimony on this point was clearly unreliable. His memory was poor even when taking account the passage of time since the incident, and the confusion caused by the sudden and unexpected nature of the event.

That was the inevitable result of his advanced state of intoxication. [ 69 ] His testimony that he saw the defendant kick and/or punch Mr. Menzies while he was down does not stand up to scrutiny. It may well have entered his memory after a period of time during which he discussed the incident with others and heard either what they believed happened or heard from other persons. It is notable that when he gave his first statement to the police, Mr. Watson did not mention either a kick or punch while Menzies was on the ground until he was asked a very leading question from the police officer.

Why did he not remember this very important point until essentially the words were put into his mouth? Did he ever really have an independent memory of seeing Presley kick or punch Menzies while he was down? There is no definitive answer to the question other than that it is quite possible that he did not. [ 70 ] It is also quite notable that Mr. Watson’s testimony was contradictory on this issue. At one point he said that after Menzies and Presley were engaged in the “hockey fight,” struggling and throwing punches at each other, he looked away to see if Presley’s friends were coming over.

He said that he looked back and saw Presley either punching or kicking Menzies. However, in cross-examination, he said that he first looked away, and when he looked back, someone was trying to perform CPR on Menzies in a clumsy and inappropriate way. That did happen, that is exactly what Ms. Schwabe did. It is also true that, she, being very close to Menzies when he hit the floor, was at his side very quickly. Thus, this version of event from Mr. Watson makes it unlikely that he saw Presley deliver any kicks. [ 71 ] Mr.

Nowakowski, by contrast, was sober when the incident happened and was also a very careful and fair-minded witness. However, his testimony about seeing a kick or kicks is also questionable. The first two times that he spoke to the police – on the 911 call, and then when he was interviewed at the restaurant – Mr. Nowakowski did not mention that he saw Presley kick Menzies. While one can always expect lapses in memory in recollecting this kind of sudden event, it is difficult to understand how one would omit to mention something so significant.

It was not until a couple of months later, in his second statement to the police, that Mr. Nowakowski mentioned the kicks. That was after he had spoken to other persons about what happened, including Mr. Menzies. It is not at all improbable that he may well have unconsciously created a memory of seeing Presley kick Menzies merely through his discussions of the issue with other persons who believed there had been a kick or kicks. It is also notable that Mr. Nowakowski, quite frankly, and to his credit, admitted that he could not really recall how many kicks actually were delivered.

It could have been one, it could have been many. Of course, that cast further doubt on the reliability of his assertion that he saw Presley kick Menzies. [ 72 ] The photographic evidence filed by the Crown includes some pictures of Mr. Menzies, which show that he had some nasty red markings on his face and neck, which appear to be consistent with being kicked. However, there was no evidence tendered by the Crown, which could prove that these markings were actually the result of the kick or kicks. There are other possible sources of those

markings, including the neck brace that Mr. Menzies was put into when he went to the hospital. Thus, these markings may be resulted from being kicked, but in the absence of perhaps some expert evidence, the picture itself is not compelling evidence that Mr. Menzies was kicked on that part of his body. [ 73 ] The evidence tendered by the defence all tends to negate the assertion that Mr. Presley kicked Menzies. Mr. Presley denies it. Mr. Barkley, who had a clear view of what went on, also says that Mr. Presley did not deliver any kicks.

The other three defence witnesses all went very quickly to Menzies when he was knocked to the ground and did not encounter Mr. Presley at all, let alone see him kick Menzies. The credibility of those witnesses was not significantly affected by cross-examination. All of them stood up quite well. [ 74 ] While there is no doubt that Mr. Presley punched Mr. Menzies, and that that alone may theoretically constitute an unlawful assault, the evidence concerning alleged kicks by Presley to Menzies is much less certain. In my view, it is equally possible that Mr.

Menzies was not kicked by Presley at all or that Presley did kick him. Thus, the Crown has not proven beyond a reasonable doubt that Presley kicked Menzies, while Menzies lay on the ground. [ 75 ] As for the altercation which led to Mr. Presley punching Mr. Menzies and knocking him to the ground, a lot of the context which led to it is missing or at least confusing. On the Crown’s theory, Mr. Presley became angry at Mr. Menzies because he made an insulting remark about Presley’s shirt. I would ask why would something as trivial as that kind of insult make anyone angry for more than a few seconds? If Mr.

Presley was so sensitive about this issue, would it not be more likely that he would respond violently right away as opposed to waiting several minutes? [ 76 ] Neither Mr. Watson nor Mr. Nowakowski saw what led up to Presley punching Menzies and knocking him to the floor. Mr. Watson’s testimony is really consistent with the two men being engaged in a consensual fight, essentially grabbing each other and throwing punches at each other. He could not tell who the aggressor was. Mr. Nowakowski, of course, saw only the one punch. He did not see what led up to it. Conclusion [ 77 ] Mr.

Presley’s testimony was not implausible. While one might question his judgment in approaching an apparently angry drunk, who seemed to harbour some unspoken hostility towards Mr. Presley, his explanation for wanting to talk to Menzies does not lack credibility. His version of the pushing and shoving which led to him punching Menzies is corroborated by Mr. Barkley’s observations. Mr. Barkley had a good vantage point from which to see what happened. [ 78 ] In the context of Mr. Presley’s version of events, the force he used was not disproportionate to the perceived threat of violence on the part of Menzies.

While Menzies was likely very drunk and obviously so, he still is a large, imposing man. Mr. Presley returned a shove with a shove. That is, he did not instantly react with a much more violent act. On his version of events, he only struck Menzies after Menzies had tried to strike him. In that context, his delivering one blow to Menzies’ face or jaw was not disproportionate and it was reasonable in the circumstances. Mr. Presley’s version of what happened is corroborated by Mr. Barkley, by all appearances an honest and credible witness. [ 79 ] Although Mr.

Presley was much stronger and fitter than Menzies, and although Mr. Menzies was quite drunk and therefore severely hampered in his ability to both react and to commit a violent act such as punching someone, he still was an imposing man who, by all appearances, could have harmed Presley if he succeeded in punching him. [ 80 ] As I have said, the ultimate question in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Presley was not acting in self-defence. Presley’s testimony was not implausible.

Neither was it inconsistent with known facts or significantly contradicted by his other witnesses. His testimony was not damaged on cross-examination. I would make the same observation about the other defence witnesses. [ 81 ] I must emphasize again that Mr. Presley is not required to prove that he struck the blow to Mr. Menzies in self-defence. Rather, the Crown must prove that he was not defending himself within the requirements set out in the Criminal Code . [ 82 ] I find therefore that the Crown has not proven, to the standard of beyond a reasonable doubt, that Mr. Presley was not acting in self-defence.

I find Mr. Presley not guilty. The Honourable Judge P. D. Gulbransen Provincial Court of British Columbia