R. v. Pryce and Defaveri Date:, 2012 BCPC 361

Citation: R. v. Pryce and Defaveri Date: 20120830 2012 BCPC 0361 File No: 56263-3-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBIN LANDREW PRYCE PAUL JOSEPH DEFAVERI EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: C. Johnson and T. McKelvey Counsel for Accused Pryce : D. Forsyth

Counsel for Accused Defaveri: A. Wolf Place of Hearing: North Vancouver, B.C. Date of Judgment: August 30, 2012 [1] THE COURT: Robin Landrew Pryce and Paul Joseph Defaveri are charged with the aggravated assault of Ronald Perry onSeptember 3rd, 2009. [2] In November 2006, Mr. Perry was charged with break and enter into a home in Lions Bay. It was described to me as "a growrip". Sometime later, Mr. Perry decided he was going to plead guilty to the charge, but before doing so, he wanted to speak with theperson in charge of the marihuana grow operation at the Lions Bay house. [3] Ultimately, that caused Mr.

Perry to go to the home of Paul Defaveri, as Mr. Perry believed Mr. Defaveri had a marihuana growoperation at his house that was being run for the same person at Lions Bay. [4] In mid to late August 2009, Mr. Perry met with Mr. Defaveri and his girlfriend at their house and asked Mr. Defaveri to tell hisboss, that is the person who was running the grow operation, that he, Mr. Perry, wanted to speak to him about the Lions Bay incident. Mr. Perry told Mr. Defaveri that he would return in two weeks. [5] Less than two weeks later, Mr. Perry again met with Mr. Defaveri at Mr.

Defaveri's house, where he was brutally and savagelybeaten, stuffed in his car, and driven to a location in Vancouver, where he was discovered by some passer-bys. [6] There is no issue that the injuries suffered by Mr. Perry constitute an aggravated assault. The issues that arise for me indetermining whether each or both accused are guilty of the aggravated assault of Mr. Perry are as follows: (1) the credibility ofMr. Perry; (2) the principles of circumstantial evidence. [7] I will now deal with the law as it relates to the issue of the credibility of Mr.

Perry. [8] When assessing a witness's credibility and reliability, I consider their testimony from three perspectives: (1) their truthfulness, whether the witness is trying to tell me the truth or intentionally lying when testifying; (2) their objectivity, whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and (3) the accuracy of their observations, the witness's abilities to observe, remember, and communicate accurately. [9] Factors relevant to truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful,inconsistencies in testimony during direct and cross-examination, reliable evidence that conflicts with the witness's testimony, and theattitude and demeanour of the witness. [10] When considering demeanour, I try to consider all possible explanations for the witness's attitude and to be sensitive toindividual and cultural factors which may affect demeanour. [11] I bear [ringing sound] -- [12] UNIDENTIFIED SPEAKER: It's not me, Your Honour. [13] THE COURT: I bear in mind that the witness's objectivity may be influenced by his expectations, assumption of unprovenfacts, or subsequent events.

Attentiveness and the duration and circumstances of the witness's observations may affect his accuracy. [14] The witness's reasons for recalling an event and the length of time between the event and testimony may affect his reliability. Some witnesses may have difficulty communicating their evidence clearly because of nervousness, for example: see R. v. Gladue, 2005BCPC 365 , a decision of my colleague, Judge Rounthwaite. [15] Applying these principles to the evidence of Mr. Perry, Mr. Perry did acknowledge during his testimony that on one occasion helied under oath.

He is, as Crown counsel acknowledged, an unsavoury witness, and while I believe Mr. Perry was generally trying to tellme the truth, based on his evidence and criminal record, I do caution myself that Mr. Perry would lie to me. I also caution myself that asa result of the beating Mr. Perry suffered, his objectivity may be influenced because he believes Mr. Defaveri was at the residence whenthe assault occurred. Finally, as a result of the beating Mr.

Perry suffered, his ability to observe, remember, and communicate may havebeen affected. [16] I have also cautioned myself regarding the inherent weaknesses of eyewitness identification. Courts have long recognized thefrailties of identification evidence. The cases are replete with warnings about the casual acceptance of identification evidence, evenwhen such identification is made by direct visual confrontation of the accused.

By reason of the many instances in which identificationhas proved erroneous, the trier of fact must be cognizant of the inherent frailties of identification evidence arising from the psychologicalfact of the unreliability of human observation and recollection: see R. v. Burke (1996), (SCC), 105 C.C.C. (3d) 205, adecision of the Supreme Court of Canada, at page 224. [17] So with respect to Mr. Perry's evidence, applying the principles I have just referred to, and also considering there is someevidence which confirms portions of Mr. Perry's evidence, I am prepared to accept some, but not all, of Mr.

Perry's evidence.

[18] Most significantly, I find beyond a reasonable doubt that Mr. Defaveri was in the living room, as described by Mr. Perry, whenthe assault occurred, but I reject Mr. Perry's voice identification evidence of Mr. Defaveri. In rejecting Mr. Perry's evidence that he heardMr. Defaveri say things to him while the offence was being committed, in addition to the principles I have referred to, I have also takeninto account his cross-examination on this point. [19] Having made those determinations respecting Mr.

Perry, I will now deal with the principles related to circumstantial evidence,as the case against each accused is dependent upon it. [20] The proper approach to prosecutions that rely on circumstantial evidence has been summarized as follows in R. v. Butler, 2007BCCA 526 at paragraph 13, quoting from R. v.

Cooper: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. [21] Circumstantial evidence is considered cumulatively.

As the learned authors of The Law of Evidence in Canada, 2nd Edition,Markham, LexisNexis, 1999, have stated [ringing sound] -- [22] THE SHERIFF: Sorry, Your Honour. [23] THE COURT: Guess we cannot just -- guess we cannot just unplug it? [24] UNIDENTIFIED SPEAKER: That'd be too easy. [25] THE SHERIFF: I'll try to find where it's plugged in. [26] THE COURT: Thank you, Madam Sheriff. [27] Each piece of evidence need not alone lead to the conclusions sought to be proved.

Pieces of evidence, each by itselfinsufficient, may however, when combined, justify the inference that the fact exists. [28] Where the number of incriminating facts each established by proof on a balance of probabilities reaches a certain thresholdstanding together, then an inference of guilt beyond a reasonable doubt will become irresistible. [29] As Justice Irving and Justice Clement concurring expressed it in R. v. Jenkins, [1908] B.C.J.

No. 52, a decision of the FullCourt: It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence havingenveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to make some explanation or stand condemned. [30] This quotation and approach were endorsed by the British Columbia Court of Appeal in R. v. Dae, [2010] B.C.J.

No. 2136, acase in which a conviction based on circumstantial evidence was upheld. [31] In Dae, Justice Prowse for the court stated: The trial judge was aware that he could only find knowledge on the part of Mr. Dae if it was the only reasonable inference to be drawnfrom the evidence. In his view, the evidence called by the Crown in this case was sufficiently compelling to invoke the principle from Rv.

Jenkins . . . [32] As in all prosecutions built on circumstantial evidence, the case at bar requires the court to be mindful of the distinction thatexists between inferences drawn from proven facts and mere conjecture or speculation. An inference capable of satisfying a trial judgebeyond a reasonable doubt that an accused committed an offence must rest upon and be drawn from a foundation of proven facts.

Byparity of reasoning, an inference inconsistent with guilt that is capable of raising a reasonable doubt must also rest upon and be drawnfrom a foundation of proven facts. [33] This distinction between inference and conjecture is easy to state, but sometimes difficult to apply in practice. It speaks to thecourt's method of reasoning and, as the House of Lords acknowledged in Caswell v.

Powell Duffryn Associated Collieries Ltd., [1940]A.C. 152, where Lord Wright stated, and I quote: . . . if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is merespeculation or conjecture. See also R. v. Lee and Pang, 2011 BCPC 21 , 2011 BCPC 0021, a decision of my colleague Judge Woods. [34] With respect to Mr. Pryce, I find that he lived at the house where the assault took place. His DNA was found on two differentareas on a zap strap that was found in the car when Mr. Perry was discovered.

This zap strap was for a one-time use. [35] While I appreciate that it is possible that Mr. Pryce's DNA was on the zap strap via a DNA transfer, and the expert evidence

confirms that possibility, I am not prepared to simply infer that on the basis Mr. Pryce resided there. I have no evidence which permits me to infer a DNA transfer, and accordingly, I have concluded beyond a reasonable doubt that Mr. Pryce modified the zap strap found in the car with Mr. Perry. [ 36 ] I acknowledge that this is compelling evidence; however, Mr. Pryce was not at the house when Mr. Perry went there the first time, and other than his DNA on the zap strap, there is no evidence that he was at home when the assault occurred. It may be that Mr.

Pryce modified the zap strap on an earlier occasion, and that is when his DNA was put on the strap. He may not have been home when the assault occurred. [ 37 ] While this circumstantial evidence is compelling, absent additional evidence placing Mr. Pryce at the home when the assault occurred, I cannot say that the only rational conclusion is the guilt of Mr. Pryce, and accordingly I find him not guilty of the aggravated assault on Ronald Perry. [ 38 ] With respect to Mr. Defaveri, he was home and in the room when Mr. Perry was assaulted. Mr.

Defaveri's fingerprint was found in blood on the door in the room where the assault occurred. That fingerprint must have been placed there a short time, perhaps within 30 minutes of the assault occurring, because it was made with Mr. Perry's blood. It was located on the lower portion of the door. [ 39 ] Crown counsel submits that the threshold in R. v. Jenkins has been met. Defence counsel submits that there are a number of explanations for how Mr. Defaveri's fingerprint could have ended up on the door; most notably, that it was placed there after the assault occurred or when Mr. Defaveri cleaned the house.

However, I have no evidence to explain why Mr. Defaveri placed his hand on the door in the way he did. I have simply that he could have done that. [ 40 ] While there is some evidence that the house was cleaned after the assault, the evidence is that a cleaning service was hired to clean the house after the assault and after Mr. Defaveri's tenancy at the house ended. There is no evidence that Mr. Defaveri cleaned the house. [ 41 ] The question remains, are there proven facts from which I can draw the inference that there is an innocent explanation for the placement of the fingerprint?

I am of the view that the answer to that question is no. While I appreciate that it was Mr. Defaveri's home, I am of the view that to say that Mr. Defaveri innocently touched the door or that his fingerprint got there while cleaning the door is to speculate. [ 42 ] I am satisfied that the rule in Jenkins applies. In my view, the only rational conclusion is that Mr. Defaveri's bloodied fingerprint was on the door because he participated in the assault on Mr.

Perry. [ 43 ] I am satisfied beyond a reasonable doubt that the guilt of the accused, Paul Joseph Defaveri, is the only reasonable inference to be drawn from the proven facts, and I find him guilty on Count 2 of aggravated assault. (REASONS CONCLUDED)