R. v. Elliott Date:, 2013 BCPC 220

Citation: R. v. Elliott Date: 20130412 2013 BCPC 0220 File No: 58600-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JERRY LEE ELLIOTT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacKAY Counsel for the Crown: G.R. Lindsey Counsel for the Accused: D. Petri Place of Hearing: Chilliwack , B.C. Date of Hearing: March 18, 19, 20, 21, 2013 Date of Judgment: April 12, 2013

[1] THE COURT: Douglas Hiatt was badly beaten in the early morning of October 29, 2010. His injuries required hospitalizationand included numerous abrasions and contusions to his upper torso, head and legs, a skull fracture, and bone fragments in his cheek, backand chest. Mr. Hiatt's injuries left him with seizures and daily headaches. Although he has made significant progress in recovering fromhis injuries, he still has a long way to go. [2] There is no question that the injuries to Mr. Hiatt were grave enough to amount to wounds as that term in used in s. 268 of theCriminal Code.

Subjectively, he believed his life was in danger. There is an objective basis for this belief as well. [3] Mr. Hiatt also suffered disfigurement to his face and skull as a result of the beating. While his facial appearance has largelyresolved, surgery to his skull will be necessary to repair disfigurement and, hopefully, alleviate the seizures and daily headaches he hassuffered from ever since the beating took place. [4] It is trite to say that no one deserves such treatment. The attack on Mr. Hiatt was vicious, senseless, and cowardly.

There wasno act of provocation or any other mitigating circumstance discernible in the evidence. [5] The central issue in this trial was whether or not the accused, Jerry Lee Elliott and Kelly Walker, committed this assault. Theevidence demonstrates that Mr. Hiatt was set upon by two men who approached his vehicle which he had pulled over off ChilliwackRiver Road. One of the men approached his passenger door window and blocked the exit. The other man approached the driver's sidedoor, pulled Mr. Hiatt from the vehicle, and administered most if not all the blows. [6] The Crown theory is that Mr.

Walker approached the passenger door and Mr. Elliott the driver's side. After argument fromcounsel last day, I determined that the identification evidence pointing to Mr. Walker's involvement was insufficient to establish his guiltbeyond a reasonable doubt. In short, although Mr. Hiatt was confident that Mr. Walker was one of the two men who were involved inattacking him, the limited opportunity he had to observe, the lack of unique descriptors in his identification together with his relativelyslight acquaintance with Mr. Walker, raised doubts. Mr.

Walker was accordingly acquitted as there was no other evidence connectinghim to this offence. [7] The situation with respect to Mr. Elliott is quite different. Mr. Elliott and Mr. Hiatt knew each other and had been in oneanother's presence on several occasions. Although the same general conditions of observation pertain to recognizing both Elliott andWalker, Mr. Hiatt's principal assailant came to his side of the car, dragged him out and remained in close proximity to him for a longerperiod than the relatively short appearance of the second face at the passenger side window of Mr. Hiatt's car. In short, Mr.

Hiatt'srecognition of Mr. Elliott is prima facie externally more meaningful than his purported recognition of Mr. Walker. [8] The relevant authorities make the point that such evidence can be usefully considered on a continuum of reliability withidentification of a known person normally warranting more weight than identification of a person with whom the witness is not veryfamiliar (R. v. McIsaac (B.C.C.A.), [1991] B.C.J. No. 3617). [9] It is, nevertheless, important to scrutinize eyewitness evidence carefully in every case where identification is an issue as it isopinion evidence.

The worth of any opinion is dependent on the facts on which it is based. [10] I have carefully reviewed my notes of evidence and the submissions made by counsel in this regard. Confident but neverthelessmistaken identification has disastrous potential consequences. [11] In this case we do not have the benefit of forensic evidence to assist in resolving the issue of identification. Although some stepswere taken to obtain such evidence, none was ultimately available here. Some fingerprints were taken from Mr. Hiatt's car and analysed.They belonged to neither the accused nor to Mr. Hiatt.

A conclusion, however, that Mr. Elliott was not present based simply on thatfeature would be no more valid than a conclusion that Mr. Hiatt was not present. Under the circumstances such a conclusion would beridiculous. [12] As I have indicated, Mr. Hiatt made a positive identification of Mr. Elliott as the principal assailant. Logically it is conceivablethat he is lying or mistaken. [13] Mr. Elliott, who also testified, denies being present and in fact testified positively to residing with his father in Hope on the datethis assault took place and specifically helping his father prepare for a trip to Kelowna.

It is logically conceivable that he is lying. Icannot see how there is any realistic possibility for him to have made an honest mistake. [14] Given the conflict in the evidence, it is necessary to consider the opposite accounts of Mr. Hiatt and Mr. Elliott and makefindings of reliability and credibility. [15] In this sort of case, the well-known ruling case of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 leads me to instructmyself as follows: • First, if I believe evidence raising a defence and negating an essential element of the offence, I must acquit. • Second, if I do not believe evidence raising a defence or negating an essential element of the offence but I am left in reasonabledoubt by it, I must acquit. • Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must askmyself whether on the basis of the evidence I accept I am convinced beyond a reasonable doubt of the accused's guilt. [16] There was also evidence from two other witnesses which went to confirmation or refutation of collateral details of the mainaccounts.

Neither was present at the time and place where Mr. Hiatt was assaulted. I have considered this evidence carefully as well and

I have also come to the conclusions about the reliability and credibility of these witnesses and what implications flow as a consequence. [ 17 ] Assessing credibility is often challenging for a trial judge. We cannot look into hearts and minds of witnesses to see whether the truth is being told. There are, however, some well-established principles which assist in this task. These include consideration of: 1. The ability to observe, record, recall, and describe events accurately; 2.

External consistency of the evidence; whether it is consistent with other independent accepted evidence and/or prior statements made by the same witness; 3. Internal consistency. Has the witness's testimony remained the same over time?; 4. Whether or not the evidence seems far-fetched. Does it have the ring of truth?; 5. Motives to lie or mislead the Court, bias, prejudice or advantage. This is useful but ought not to be applied in analysing the accused's testimony for reasons of obvious fairness; 6. The attitude and demeanour of the witness.

While this is something to consider, it is problematic for a number of reasons and thus ought not to be determinative. [ 18 ] The difficulty in making assessments based upon demeanour was discussed under the heading "Particular Concerns in Assessing Credibility" in McWilliams Canadian Criminal Evidence which states in part at p. 27-7 as follows: As a majority of the Supreme Court observed in R. v.

S. (R.D.) , credibility assessments are often dependent "on intangibles such as demeanour and the manner of testifying" and "the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. In R. v. Boyce , the Ontario Court of Appeal held that "[t]rial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial." In R. v.

Hull , the same Court held that the trial judge erred when she observed that "[i]t is dangerous to draw conclusions or inferences from demeanour." Evidence of the Complainant [ 19 ] While I could not find anything particular in the demeanour of Mr. Hiatt to assist me in determining his credibility, I observe that he appeared to be responsive to all questions put to him. It is true that he appeared somewhat hostile to some of Mr.

Petri's questions in cross, but also true that these largely had to do with aspersions on his character which might be expected to produce such a response. [ 20 ] While the conditions at the scene of the attack were not optimal, I am satisfied that the duration and proximity of the principal attacker, Mr. Elliott, put him in a good position to make a reliable identification of this assailant. [ 21 ] To the extent that his description of the scene was inaccurate, I am satisfied that such discrepancies are immaterial. [ 22 ] Mr.

Hiatt displayed a poor recollection of some collateral events and from time to time gave differing accounts to the police versus his testimony. I do not think much turns on this. I accept that his statements to the police may have been inaccurate in some respects, but note that he was and is clear about the central details of the attack.

It is further understandable that some details were not as clear as others, given that he was medicated when he spoke to the police and badly injured or recovering from injuries. [ 23 ] As to his not noticing certain things at all, nothing strikes me as being particularly significant. Indeed, one would be astounded if, for example, Mr. Hiatt was able to recount details such as items of clothing worn by his assailants. There is no reason why such things would attract his attention or remain in his memory.

To the extent that he added details, I did not consider this to be sinister given the conditions under which his initial statements were made. [ 24 ] I found Mr. Hiatt's account to have the ring of truth to it. There was a rational explanation for what happened to him and remained essentially consistent with respect to the events immediately before, during, and after the assault. His important testimony was not shaken in cross-examination, particularly the positive identification of Mr.

Elliott as the principal assailant. [ 25 ] While there is some question in my mind whether he actually saw a hammer or was told it must have been used at a later time, I am confident that he accurately perceived that some blunt force weapon was used in the attack on him. [ 26 ] As to suggestions of bias on the part of Mr. Hiatt, it is my view that his statement to the police -- and I am paraphrasing – that he "sincerely hoped the accused got into lots of trouble" is understandable and would be expected of someone who had undergone a similar ordeal.

It does not lead to any necessary inference that he is prepared to lie to falsely implicate Mr. Elliott. Similarly, any suggestions that he wanted to "get" Mr. Elliott in order to protect or otherwise benefit Ms. McKay have no real foundation. [ 27 ] There were matters on which Mr. Hiatt's testimony differed from others. Two examples are when he received a text message from Ms. McKay on the date of the attack and whether or not he used drugs with his son earlier that evening. [ 28 ] With respect to the text message issue, I find Ms. McKay to be particularly incredible on this point.

She first testified to remembering the time and content of text messages sent two and a half years earlier. When confronted about this in cross-examination, she resiled from this position. I prefer and accept Mr. Hiatt's account that she sent him a text message shortly before the beating. [ 29 ] With respect to Mr. Hiatt's use of drugs, I accept the testimony of his son that he did use some marihuana and alcohol that evening. Mr. Sharpen impressed me as someone who took his responsibility to tell the truth seriously. Overall, he presented a balanced view which included unflattering things about his father.

He displayed no animus in so doing and the evidence about consumption strikes me as realistic and accurate. He did contradict his father on this point but I do not conclude that Mr. Hiatt was being deceptive.

[ 30 ] I say this because he generally was candid about matters that put him in a bad light and had other difficulties recalling peripheral details. If he wanted to present himself in a falsely favourable light he would likely have made up a story about the marihuana found in the trunk of his vehicle rather than accepting responsibility for it as he did. [ 31 ] Overall, I accept Mr. Hiatt as a credible and reliable witness about the events of that evening. To the extent that he is unreliable about other details, I do not find that this has any great significance for the reasons I have given. Mr.

Sharpen [ 32 ] As noted, Mr. Sharpen is Mr. Hiatt's son. His account was balanced and in accordance with common sense. He did not appear to have any animus towards the accused. I accept his testimony. [ 33 ] The significance of this for the Crown's theory is that it supports Mr. Hiatt's claim that Mr. Elliott made a threat at Mr. Hiatt's residence to cause harm to the premises and occupants. The precise wording used varied somewhat as between Mr. Hiatt and Mr. Sharpen, but that is in my view not significant. Ms. McKay [ 34 ] In marked contrast to Mr. Sharpen, Ms. McKay's evidence betrayed a bias towards Mr.

Elliott. She made incredible claims about her ability to observe and record and remember insignificant details which claims did not stand up well to cross-examination. She claimed, for example, to remember everyone who owed her money. She sought to shield Mr. Elliott throughout her testimony, one specific example being her ridiculous account of how Mr. Elliott was dropped off at Mr. Hiatt's the night he stayed over. This was a transparently obvious attempt to tailor the facts given that Mr. Elliott did not have a valid driver's licence at the time. Even Mr.

Elliott did not go this far. [ 35 ] To the extent that Ms. McKay's account conflicts with other accounts, I reject it. That being so, there is virtually nothing of value in her testimony. Mr. Elliott [ 36 ] There is no suggestion that Mr. Elliott had any disability or condition that would affect his ability to observe, record, and retrieve his memory of the events he testified to. It is true, as Mr. Petri pointed out, that Mr. Elliott appeared outwardly calm in giving his testimony.

From time to time, he did acknowledge not remembering certain things. [ 37 ] Of course as I have noted, demeanour is often a very inaccurate means of determining credibility. A practiced liar may appear supremely calm and may skilfully weave fiction together to enhance his account. [ 38 ] Mr. Petri put Mr. Elliott's criminal record before the Court and invites me to consider his acknowledgement of it as a further indication of his credibility, i.e., that he is open and candid about his past. I cannot accede to this as Mr. Elliott presumably gave those instructions to Mr. Petri.

The contrary would have been astonishing if he had denied the record under those circumstances. [ 39 ] I agree with Mr. Lindsey's observation that Mr. Elliott went out of his way to cast aspersions on Mr. Hiatt's character. These attempts included gratuitous references to Mr. Hiatt dating a 14-year-old girl and wherever possible advising the Court how very immersed Mr. Hiatt was in drugs. At the same time, he purports not to have any ill will towards Mr. Hiatt and not to dislike him to this day. This was a startling statement given the way he glared at Mr. Hiatt throughout Mr.

Hiatt's testimony. [ 40 ] A further example of the far-fetched nature of Mr. Elliott's testimony is his claim that he was concerned to keep his children away from drugs and drug users. This makes absolutely no sense and makes his choice of companions extremely odd as Ms. McKay, her sister, her sister's boyfriend Mr. Cepas (phonetic), and according to Mr. Elliott himself, Mr. Hiatt, were all fully immersed in that sub- culture. [ 41 ] What struck me as particularly far-fetched was Mr. Elliott's claim that he was living with his dad in Hope and helping his dad pack for a trip to Kelowna.

This is where he would apparently have the Court believe he was on the evening that the attack took place. Not only did this claim lack clarity and detail, there is absolutely no corroboration of it. I reject it. I conclude it was a lie told in hopes of distancing himself from the incident. [ 42 ] I was struck by Mr. Elliott's answers to questions put to him in cross-examination. While he maintained an outwardly calm demeanour throughout he became evasive and unresponsive when pressed for explanations by Mr. Lindsey. [ 43 ] I am drawn to the conclusion that Mr. Elliott is neither a credible nor reliable witness.

Where his evidence conflicts with that of Mr. Hiatt or Mr. Sharpen I have no hesitation in preferring their evidence to his particularly on the important points related to his threat made in the presence of both Mr. Hiatt and his son, and to his presence at and participation in the beating of Mr. Hiatt. [ 44 ] On all the evidence, it is clear to me that Mr. Hiatt continued to associate with Ms. McKay out of what might have been misplaced concern for her. This overcame any fear he had of Mr. Elliott. To deal with Mr.

Elliott, he essentially adopted tactics of appeasement, a tactic that is risky enough although not without precedent in dealing with a bully. [ 45 ] In conclusion, I reject Mr. Elliott's evidence and find that it does not raise a reasonable doubt. The evidence that I do accept more than sufficiently establishes his guilt of both offences charged. Accordingly, I find Mr. Elliott guilty on both counts. __________________________ R.C. MacKay J.