R. v. Osinde, 2018 BCPC 420

Citation: R. v. Osinde 2018 BCPC 420 Date: 20180412 File No: 217037-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JAMES ONYO OSINDE BAN ON PUBLICATION pursuant to s. 486.4(2) of the Criminal Code of Canada ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. LA PRAIRIE Counsel for the Crown: M. Stacey Appearing on his own behalf: The Accused Place of Hearing: Surrey , B.C. Dates of Hearing: Nov. 30, Dec. 1, 2017; Jan. 25, Feb. 27, 2018 Date of Judgment: April 12, 2018 [ 1 ] James Osinde is charged with the sexual assault of E.G. on September 6, 2015. Ms.

G alleges that she awoke to find Mr. Osinde committing a sexual assault of her while she was asleep in his residence the morning of September 6, 2015.

[ 2 ] Mr. Osinde denies that he committed a sexual assault of Ms. G and testified that the incidents of sexual activity described by Ms. G simply did not occur. [ 3 ] Ms. G testified about the events of the night of September 5, 2015, leading into the early morning hours of September 6, 2015, when the alleged sexual assault took place. [ 4 ] In his testimony, Mr. Osinde confirmed many of the events that night, but where there is divergence in the evidence is in relation to whether the incidents constituting the sexual assault allegations occurred. [ 5 ] The main issue, in this case, is one of credibility.

In assessing credibility, the whole of the evidence must be considered and the relevant legal framework applied in order to reach a conclusion on the facts. EVIDENCE [ 6 ] The parties met at the Balmoral Hotel in Vancouver in the early morning hours of September 6, 2015, when the bar was closing. Mr. Osinde was with Ms. G's friend, M.R., who Ms. G was staying with. When the bar closed, Ms. R told Ms. G that she was going to Mr. Osinde's residence in Surrey for a party. As Ms. G was to stay at Ms. R's residence, she felt she had no choice but to go to Surrey with her and Mr.

Osinde. [ 7 ] Prior to heading out to Surrey, Ms. G and Ms. R went to change clothes at Ms. R's apartment. They returned to the bar where Mr. Osinde was outside with a couple of other persons and the group started the journey to Surrey. The five persons travelled from downtown Vancouver to Surrey via the bus to Metrotown and then by cab to Mr. Osinde's basement residence. [ 8 ] At the residence, they sat in the living room and drank Margaritas followed by Jägermeister Bombs. Ms. G testified that she felt woozy after the drinks and described falling asleep. Mr. Osinde testified that Ms. G passed out.

It is at this point where the stories diverge. [ 9 ] Ms. G testified that she next remembers waking up in Mr. Osinde's bedroom with his fingers in her vagina and him kissing her vagina. She told him to stop and pushed him away. She fell asleep and next woke to find Mr. Osinde engaged in sexual intercourse with her without her consent. She told him no, and pushed him off. Ms. G was upset. She gathered her underpants and sweatpants from the floor, put them on and went to the living room where she fell asleep on the couch. [ 10 ] When Ms.

G woke up later that day she sent a text to her sister advising that she had been raped. The sister instructed Ms. G to leave the residence and attend the police. Prior to leaving the residence, Ms. G advised Ms. R that she had been raped by Mr. Osinde. As a result, Ms. R left Mr. Osinde's residence with Ms. G. [ 11 ] Mr. Osinde denies that he was in the bedroom with Ms. G on September 6, 2015, and denies that he engaged in any type of sexual activity with her that morning. [ 12 ] After leaving Mr. Osinde's residence, Ms. G and Ms.

R eventually attended the Vancouver General Hospital where a sexual assault examination was conducted by Mariko Miller. Ms. Miller is a nurse trained in sexual assault examinations. The examination of September 6, 2015, revealed a small tear to the vagina of Ms. G which was consistent with having been caused within one to three days. Ms. G acknowledged to Ms. Miller that she had engaged in consensual sexual activity with another individual within three days of the medical exam. [ 13 ] A few months later, Ms. G attended the police detachment to view a photo lineup. She identified Mr.

Osinde from the photo lineup and the video of that procedure was entered into evidence. LEGAL FRAMEWORK [ 14 ] The legal framework to be applied in assessing credibility was set out by the Supreme Court of Canada in W.(D.) and recently reiterated by the British Columbia Court of Appeal in R. v. J.F.D. , 2017 BCCA 162 , at paragraphs 50 and 51 where the court commented: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

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… To this analysis is added a fourth step: “if … you are unable to decide whom to believe, you must acquit”... REOPENING OF SUBMISSIONS [ 15 ] On February 27, 2018, Mr. Osinde advised the court that he had terminated his counsel and was now representing himself in this case. He applied to reopen the case and provide further submissions on the evidence.

The application to reopen the case was not opposed by the Crown and the application was granted. [ 16 ] Mr. Osinde provided a two-page

summary of written submissions he wished the court to consider on the evidence. Those written submissions were marked as an exhibit. I have reviewed the written submissions of Mr. Osinde and considered them in my assessment of the evidence. REOPENING OF THE CASE

[ 17 ] Today, April 12, 2018, Mr. Osinde applied to reopen the case in order to present additional evidence. The Crown did not oppose the application and the case was reopened so that Mr. Osinde could testify and introduce photographs into evidence. [ 18 ] Mr. Osinde introduced four photographs of his bedroom into evidence. The four photographs were marked as Exhibits 8 through 11. The first photograph, Exhibit 8, depicts the headboard of the bed and the wall beside the bed. Mr. Osinde testified that the right side of the bed is against the wall and the door to the bedroom is to the left of the bed.

He testified that it would have been impossible for Ms. G to have exited the right side of the bed as she would have to go through the wall next to the bed. [ 19 ] Mr. Osinde testified that the second photograph, Exhibit 9, depicts the right side of the bed next to the wall. [ 20 ] The next photograph, Exhibit 10, shows the rear of the bed. A closet is visible along with the projector screen but there is no window visible. [ 21 ] The fourth photograph, Exhibit 11, depicts the left side of the bed as testified to by Mr. Osinde. Mr.

Osinde testified that there is nothing in the room that would look like a window and no one can exit the right side of the bed as there is a wall. Mr. Osinde testified that it is impossible for Ms. G to have exited the right side of the bed as the bed is against the wall and she could not have seen a window in the room as there is not one in the bedroom. Mr. Osinde testified that Ms. G could never have been in the bedroom given her testimony of having exited the right side of the bed and having seen light coming from behind the window covering. Mr. Osinde asserts that Ms.

G is not a credible witness and her testimony should be rejected. ASSESSMENT OF THE EVIDENCE [ 22 ] Ms. G was consistent in her testimony. She was able to recall details, places and events, in a clear fashion. She described the events constituting the sexual assault by Mr. Osinde in a precise and clear manner. Her story flowed. Ms. G testified that she woke up in Mr. Osinde's bedroom on the right side of the bed, close to the door. She was on her back. Mr. Osinde was trying to kiss her vagina. She got off the bed and put on her clothes. She then laid back down on the right side of the bed. Ms.

G recalls a window in the room, which was covered, and some light coming in from the window prior to her falling asleep again. Ms. G woke up to find Mr. Osinde engaged in sexual intercourse with her. She pushed him off of her. [ 23 ] In cross-examination, Ms. G testified that there was a small amount of light coming from the door and curtains into the room. When it was suggested to her that there was no window, she testified that there were curtains in the room and a TV screen. Ms. G testified that there was something on the wall and recalls a TV screen being in the room.

She testified that there was a dresser next to the bed on the right side of the bed. It is clear from her testimony that Ms. G has described the right side of the bed as being the side with the dresser and not the side of the bed next to the wall. Ms. G also testified that there was a TV screen in the room. Ms. G did not describe having seen a window, but rather a covering which is consistent with her description of the TV screen. [ 24 ] I am satisfied that Ms. G was able to describe the layout of Mr. Osinde's bedroom and was, in fact, in the room.

Her testimony that she exited from the right side of the bed where the dresser is located is consistent with the contents of the photographs entered into evidence as Exhibits 8 through 11. I find that Ms. G's testimony of having been in Mr. Osinde's bedroom when the sexual assaults occurred is credible. Overall, Ms. G was not shaken in cross-examination. She was consistent in her testimony that she awoke to find Mr. Osinde with his fingers in her vagina and then later awoke to find him engaged in sexual intercourse with her. [ 25 ] As Ms.

G was asleep at the time that each of these events commenced, the issue of consent does not arise. Ms. G was not challenged in cross-examination of her identification of Mr. Osinde as the person who she awoke to find committing these acts. [ 26 ] The Cro wn's case proving the offence of sexual assault is strong. Mr. Osinde has denied the incidents constituting the sexual assault. Much of his evidence is consistent with the testimony of Ms. G concerning the events of that night leading up to the alleged assault. Where it differs is in his denial of the sexual assault. [ 27 ] Ms.

R testified for the defence at trial. Her evidence must be treated with caution. Ms. R was hostile on the witness stand. She appeared to be under the influence of some type of substance and attended court under protest. The majority of her testimony is of little value given clear credibility issues. She was unable to recall details and, in fact, was unable to recall significant details such as whether she engaged in sexual intercourse with Mr. Osinde that morning. I place little reliance upon her evidence, other than she confirmed that Ms. G told her that day that she had been raped by Mr. Osinde. Ms.

R confronted Mr. Osinde about this prior to leaving the residence with Ms. G. [ 28 ] Mr. Osinde acknowledges in his evidence that he was confronted by Ms. R prior to her leaving the residence with Ms. G, but he denies knowing what she was upset about. I do not accept his testimony on this and I am satisfied that he was confronted by Ms. R about having raped Ms. G. [ 29 ] I do not find Mr. Osinde to be a credible witness. He was inconsistent in his testimony and became argumentative with the Crown in cross-examination.

An example of his inconsistent testimony concerns whether he had anything to drink prior to arriving home early in the morning of September 6, 2015. In direct examination, he testified that he did not have anything to drink before arriving home from downtown Vancouver. In cross-examination he was asked if he had a bottle of alcohol with him when he was in downtown Vancouver and he testified that he had one, stating, "I was drinking". When this inconsistency was pointed out to him, Mr. Osinde testified that he considers a drink to be a shot out of a glass. [ 30 ] Mr.

Osinde confirmed that he was carrying a bag with a bottle of alcohol, but he denied that he drank from the bottle and explained that he thought the Crown was referring to cans of Coke when asked if he had been drinking. Further, he feigned knowing what a sip was when the Crown asked if he had sipped any of the vodka in his possession. He again stated that he did not have a drop of alcohol prior to arriving home in Surrey that morning. Mr. Osinde clearly testified that he had a bottle of alcohol in his possession when he was returning home to Surrey from downtown Vancouver.

He testified he was drinking. [ 31 ] When he realized that he had contradicted his direct evidence on this issue, he tried to backtrack and explained that he was

confused about the questions he was asked by the Crown. His response that he thought the Crown was referring to Coke and backtracking on his clear response that he was drinking was an attempt to mislead the court. Ms. G testified that Mr. Osinde was drinking on the way back to Surrey. Ms. R also testified that Mr. Osinde was drinking on the way back to Surrey. [ 32 ] I find that Mr. Osinde was drinking alcohol while he was in downtown Vancouver and while travelling to Surrey with a group of people.

I am satisfied that he lied to the court concerning whether he had consumed alcohol prior to arriving home in Surrey that morning. This is but one example of Mr. Osinde being inconsistent in his testimony. It is also an example of his being untruthful under oath. Thus, I reject Mr. Osinde's testimony, other than those portions that corroborate the testimony of Ms. G concerning the events leading up to the sexual assault. Mr. Osinde is not a credible witness. [ 33 ] Nor do I find Ms. R to be a credible witness, other than in aspects of her testimony that corroborate the testimony of Ms.

G. [ 34 ] I am satisfied that the defence evidence presented in this case does not raise a reasonable doubt in the Crown's case. In particular, the testimony of Mr. Osinde does not raise a reasonable doubt in the Crown's case. I find that the Crown has proven that Mr. Osinde committed a sexual assault of Ms. G on September 6, 2015, beyond a reasonable doubt, and he is convicted of the offence as charged. (REASONS FOR JUDGMENT CONCLUDED)