R. v. Awasis Date:, 2012 BCPC 573

Citation: R. v. Awasis Date: 20121220 2012 BCPC 0573 File No: 221359-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHNNY AWASIS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAGNALL BAN ON PUBLICATION 486.4(1) CCC; 486.4(2) CCC; 517(1) CCC Counsel for the Crown: M. Street

Counsel for the Defendant: M. Redgwell Place of Hearing: Vancouver , B.C. Date of Hearing: December 20, 2012 Date of Judgment: December 20, 2012 [ 1 ] THE COURT: Johnny Awasis is charged with having sexually assaulted one D.B. using a weapon, a knife, on August 31st, 2011, and he is charged with having sexually assaulted one T.L.L. on August 9th, 2011. The Information respecting these charges was sworn on September 1st, 2011.

The trial took place on October 26th, 29th, 30th, 31st, and November 1st, 2012. [ 2 ] I reserved my decision until November 29th, 2012, but then asked counsel for further submissions and the matter was adjourned until today. [ 3 ] Mr. Awasis testified during the trial. His evidence was that he was elsewhere than with the complainant on August 9th, 2011. He believes the complainant is framing him at the request of a mutual acquaintance. [ 4 ] With respect to the events of August 31st, 2011, Mr.

Awasis testified that he was with the complainant, that there was no non-consensual sexual contact between them, and that she was and is fabricating allegations of sexual assault in order to avoid a bargain that she made with him to pay for drugs she consumed with a sexual act. [ 5 ] The issue that I asked counsel to address after I heard the evidence and the submissions is the admissibility of the evidence on one count towards the other count.

Given the proximity in time, in location, the similarity of the circumstances that gave rise to the counts, and the evidence of the accused that the complainants, both sex trade workers, are fabricating their stories, I thought the principles in R. v. Handy , 2002 SCC 56 , were applicable. [ 6 ] Counsel have provided written submissions to me respecting this issue.

The memorandum that I sent to counsel and their submissions are going to be filed as Exhibit 19 in these proceedings. [ 7 ] Counsel for the Crown and for the defence both submit that I ought not consider the evidence in what is often referred to as a "similar fact" manner. I have therefore assessed the evidence relevant to the two counts independent of one another. [ 8 ] The only real issue on this trial is credibility. I have therefore instructed myself in accordance with the principles in R. v. W. (D.) .

In the context of this trial, that means that if I accept the evidence of the accused or if I have a reasonable doubt based on his evidence, or if I cannot decide whether to accept or reject his evidence, then I must and will acquit him of the two charges he faces.

If I reject the evidence of the accused and his evidence does not raise a reasonable doubt in my mind, I must still examine all of the evidence to determine whether I am satisfied beyond a reasonable doubt that he is guilty of the charges. [ 9 ] The task of finding the facts, of determining what really happened, involves the weighing of evidence, but is not an exercising in preferring one witness's evidence over that of another.

This is because the doctrine of reasonable doubt applies to the issue of credibility as it does to every other issue in a criminal trial. [ 10 ] Triers of fact, whether judges or members of a jury, are not able to look into a witness's mind to see whether the witness is speaking the truth, yet we must try to discern, if we can, where the truth lies. Some aspects of a witness's testimony that I find helpful in this determination are these, and these are in no particular order: 1. The external consistency of the evidence given.

I ask whether the testimony of the witness is consistent with independent evidence that I accept. 2. The existence of prior inconsistent statements or previous occasions when the witness was untruthful. A criminal record for certain offences may be applicable to this issue. 3. The internal consistency of the testimony. I ask whether the witness's evidence changes while the witness is testifying. 4. I consider any motive that the witness might have to lie or mislead the court. 5. I consider the ability of the witness to originally observe, to record in memory, and to recall the event. 6.

I consider the attitude and demeanour of the witness. I look at whether the witness is evasive, belligerent, or inappropriate in response, particularly during cross-examination. 7. This might be the most important of the factors. I consider the sense of the evidence. When I apply my common sense to the evidence, is the result impossible, improbable, or unlikely, and what other results are there? [ 11 ] Some or all of these factors, sometimes just one of these factors, leads to the moral certainty that a witness's testimony is not reliable.

It is only when that certainty is present that an accused's testimony should be rejected. [ 12 ] I have kept all of these factors in mind. I have kept in mind that the onus is on the Crown and the ultimate burden of proof is beyond a reasonable doubt. [ 13 ] I turn now to a consideration of some of the evidence in this trial. My reasons will be relatively brief because, having reviewed all of the evidence and the submissions of counsel, I have concluded that only one or two aspects of the evidence require comment.

[ 14 ] I wish to focus first on Count 2, the earlier in time of the two events. Mr. Awasis testified that he was not in the company of the complainant and did not do the things she described. He said that he was with members of his family in Surrey sleeping at the time that she said she was assaulted, which was about six o'clock in the morning on August 9th, 2011. [ 15 ] Mr. Awasis testified about a problem he had in 2006 with a relative by marriage, or by common-law relationship, named Trevor Holland, and he said that that problem resulted in bad blood between himself and Mr. Holland. [ 16 ] Mr.

Awasis testified that he does not know the complainant, T.L.L., nor is there any problem between them. [ 17 ] T.L.L. agreed in cross-examination that she knows someone named Trevor Holland and that she spoke to him about having been assaulted approximately one day after the events of August 9th. She said she described the assailant to Mr. Holland, and he told her that this person sounded to him like the accused, and he also said that the accused had just been released from jail. [ 18 ] T.L.L. is a very unsophisticated person. She is 39 years old and has been a sex trade worker for 15 years.

She is addicted to cocaine. She described the incident in question and all of the surrounding circumstances in great detail. Some of the specifics of the event are unusual and, in my view, unlikely to have been fabricated. [ 19 ] T.L.L. identified the accused as the person who assaulted her in court. [ 20 ] She said that she told a friend about the event almost immediately, and she reported it to the police on August 14th, 2011. She was asked about why she delayed reporting the matter to the police.

She explained that the reason was because of the reticence of most sex trade workers to report crime, because her experience is that the police do not take sex trade workers too seriously when it comes to this sort of event, and because she expected to be checked by the police in any event, which is apparently a common occurrence, which would give her an opportunity to make a report without being labelled a "rat". [ 21 ] She testified that she did report the event to the police on the next occasion when she was checked by them. [ 22 ] T.L.L. was presented with a photo pack on August 31st, 2011.

She identified a photograph of the accused as a picture of the man who assaulted her. This was the first, and therefore the only photograph shown to her. [ 23 ] T.L.L. was asked about Trevor Holland in cross-examination. She testified that she does not know him well, nor does she see him often. She referred to him as "Trevor Dude". She did not recall his surname, but recognized it when it was said to her, when she was prompted. She denied that Mr. Holland or anyone else put her up to framing the accused. She said that she spoke to Mr.

Holland about the events on the day following those events, and that he did not provide her with a description of the accused, but that the opposite occurred. She gave a description of the man who assaulted her to Mr. Holland, who said that sounded like "Johnny", who just got out of jail respecting sex charges. [ 24 ] In submissions, Mr. Redgwell highlighted as the foundation for a reasonable doubt of the guilt of the accused on this count the fact that T.L.L. did not recall seeing tattoos on the accused's arms, which were exposed during the event.

Her reaction to this when cross-examined about it was that her focus was elsewhere because she was being assaulted, and I conclude that that was the reason she did not recall the tattoos. [ 25 ] Nothing, in my view, turns on the few days' delay before T.L.L. reported the event to the police. She related the events in great detail. She was unshaken during cross-examination.

Her responses to suggestions that she was fabricating her evidence were exactly what one would expect of someone who is telling the truth: certainty tinged with indignation. [ 26 ] As I have said, T.L.L. presents as a very unsophisticated person, not the sort of person who could make up an event such as she described and then consistently relate that narrative in the face of thorough cross-examination. [ 27 ] In addition, I consider it very telling that T.L.L. chose a photograph of the accused, the first one she was shown in a photo lineup, three weeks after the event.

I conclude she could not have done that if the scenario suggested by the defence is correct and she was in fact framing the accused. [ 28 ] I accept what T.L.L. said. I do not accept the evidence of the accused about the events of August 9th, 2011, nor does his evidence raise a doubt in my mind as to his guilt. [ 29 ] I turn to the charge arising from the events on August 31st, 2011. Mr. Awasis testified that he was with the complainant at the relevant time, but that he did not assault her.

The defence theory is that she accused him of assaulting her in order to avoid providing the accused with sexual services which she had agreed to perform in return for him sharing the drugs he had with her. [ 30 ] There were certainly some discrepancies between what D.B., the complainant, said to the police shortly after the event and what she said about some details of the events during her testimony, but D.B.'s evidence about how the event ended was confirmed in all material details by the evidence of Angela Field. In addition, Ms.

Field testified that when she approached her, that D.B. was in tears, that her voice was shaking, and that her hands were shaking. This is the sort of reaction one might expect from a woman who had just escaped a sexual assault at knifepoint. [ 31 ] D.B. did not present as the sort of person who could fake such a reaction. She is 48 years old and has worked in the sex trade for 15 years. She was addicted to heroin in the past, but at present takes methadone to control her addiction.

She struck me as unsophisticated. [ 32 ] She testified on October 29th for most of the day and was excused at the end of that day after re-examination. The next day, October 30th, Mr. Redgwell indicated that he wished to ask D.B. further questions in cross-examination. The prosecutor located her and she returned to court on October 31st to be further cross-examined.

[ 33 ] If the accused's evidence is accurate, then D.B. fled from him, complained to Downtown Eastside workers that she had been assaulted, faked symptoms of extreme fear and distress, gave a videotaped statement to the police, viewed a photo pack and identified the accused, and 18 months later appeared in court, testified for the better part of a day, and returned two days later to answer further questions, all in order to avoid fulfilling her side of a bargain she made with the accused to perform sexual services for him, to pay for the drugs he had that he shared with her.

This is an extremely unlikely scenario. [ 34 ] It is very improbable that an unsophisticated, 15-year veteran of the sex trade would do all of this to avoid such a bargain. [ 35 ] Mr. Awasis testified that on August 31st, 2011, he was selling drugs, which belonged to someone else, near the Carnegie Centre at Main and Hastings in Vancouver. He had three grams of cocaine in his possession when he met D.B. He testified that he agreed to share the drugs with her in exchange for some sexual activity. He walked away from the area with D.B., in effect stealing the drugs from the person who owned them, his boss.

He testified that there would be or could be significant negative consequences for doing what he did, such as getting beaten up or having his head shaved. This scenario, as related by Mr. Awasis, again just does not make sense, and I have taken into account that people do things that fly in the face of common sense regularly. [ 36 ] But as well, Mr. Awasis's description of the end of the interaction that he had with D.B. was inconsistent with the evidence of Ms. Field, whose evidence I accept. [ 37 ] I do not accept the evidence of Mr.

Awasis respecting Count 1, nor does his evidence raise a reasonable doubt in my mind as to his guilt. I accept the evidence of D.B. for the reasons I have attempted to set out. [ 38 ] Mr. Awasis, would you rise, please, so that I can formally give my verdict. [ 39 ] With respect to Count 1, I find you guilty as charged. [ 40 ] With respect to Count 2, I find you guilty as charged. (REASONS CONCLUDED)