R. v. Moody, 2019 MBPC 32

CITATION: R. v. Moody , 2019 MBPC 32 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) P. Benham, for the Crown ) - and - ) ) Gerard Jonah Moody ) J. Rogala, for the Accused ) ) Judgment delivered: ) June 3, 2019 CORRIN, P.J. THE EVIDENCE RELATED TO THE COURT [ 1 ] On the late evening of April 22, 2018, the accused and the complainant were setting up a newly purchased gazebo in the backyard of their residence. During the time they were working on the gazebo, friends arrived. [ 2 ] While setting up the gazebo the complainant and the accused consumed beer.

According to the complainant she consumed only three beers prior to going into the house around midnight and going to bed. The accused testified that he had consumed five beers between 8:00 to 10:00 p.m. as well as two or three ‘king’ cans between 10:00 p.m. and roughly midnight.

That thereafter he and a friend had attended to the basement of the residence and consumed hard liquor (eight ounces of vodka and five ounces of Hennessy cognac, a variety of brandy, over the next couple of hours before he passed out. [ 3 ] The accused claimed to have awoken between 4:00 and 5:00 a.m. when his friend was exiting the residence. At such time, he claimed to have overheard his friend and the complainant talking.

That their conversation lead him, perhaps due to the quantity of alcohol the accused had consumed in the previous six to seven hours, to believe that she was being unfaithful and having an affair with his friend. [ 4 ] The complainant testified that she had awoken around 5:00 a.m. and attended to the basement where she drank some vodka with the accused. She described herself as being half-way to full intoxication. During their conversation, the accused, she said, confronted her about being unfaithful, resulting in an argument.

She recollected that they had argued about this after drinking for approximately a half hour. According to the accused, he then advised the complainant that he was going to leave the house. [ 5 ] The accused testified that he had stood up to leave and the complainant had blocked him from being able to do so. That she had stood in front of the stairs. The accused testified that he had then used his palm to push her out of the way. The accused related that, even though he had not applied much force, she landed on the arm of a nearby couch.

The complainant was never questioned respecting this subject matter during her direct or cross-examination. [ 6 ] The accused went on to testify that he then went upstairs where he was soon joined by the complainant. That before leaving the house he returned to the basement in order to retrieve two bottles of alcohol. That while retrieving the bottles, he accidentally broke one of them.

The complainant’s version, provided on cross-examination, only mentioned that she had been the first to go upstairs and that the accused had followed her and continued the argument, after breaking the bottle downstairs. [ 7 ] Both parties testified that the argument had continued when they were upstairs. The complainant testified that the accused had come upstairs and found her on the phone, calling the police.

She told court that she had become fearful for her safety and had called the police for assistance. [ 8 ] The complainant testified that while on the phone, the accused had thrown her to the floor while choking her. A slightly different version of events were imparted to police in her statement. In such interview she told police that she had called them after he had thrown her to the floor. The accused denied pushing the complainant to the floor and choking her.

According to him he had simply left the house and walked over to a friend’s place, a short distance from his residence. [ 9 ] The Crown called a further witness, WPS Cst. Holly Forsyth. Cst. Forsyth related that she had attended the residence after being dispatched to do so at 5:29 a.m. She told court that she met with the complainant and discerned no signs of impairment. That she had taken the complainant’s statement and had seen a two to three inch red mark on the front of her neck.

POSITION OF THE DEFENCE [ 10 ] Defence contends that the Crown failed to prove that the complainant did not consent to the force applied to her when she allegedly blocked the accused from being able to leave the basement. Needless to say, this argument is premised on the Court’s

acceptance of the accused’s testimony respecting the basement “push”, something that the complainant did not mention in the course of her testimony. The Defence also argued that self-defence pertains to the basement “push” assault described by the accused. That he should therefore benefit from such defence pursuant to

section 34 of the Criminal Code . In final answer to the self-admitted basement related “push” assault, the Defence relied on what he described as being the defence of de minimus i.e. that the assault, if found to be a criminal act, was of “such trifling nature” that an acquittal should be entered by the Court. [ 11 ] Defence further argued, in relation to the complainant’s allegation of being choked and thrown to the floor upstairs, that there was no credible evidence to support a finding of guilt.

ANALYSIS [ 12 ] The Court observes that this is a W.(D.) case and as such the Court is obliged to apply the three pronged approach mandated by the Supreme Court of Canada in such jurisprudence. The Court also observes that it must follow the dicta set out in R. v. Menow , 2013 MBCA 72 respecting the process required to conduct its W.(D.) assessment and weighing of the evidence.

That such test requires the Court, as trier of fact, to look at the accused’s evidence cumulatively and not in isolation (see para. 23). [ 13 ] Does the Court believe the accused’s version of the incident and as such acquit him of the charge before the court? [ 14 ] The Court agrees with the Crown that such is not the case. As argued, there are issues with the accused’s evidence, that undermined his credibility and reliability. [ 15 ] The accused conceded that his memory of events was somewhat clouded by his high level of intoxication.

His evidence respecting his alcohol consumption made it clear to the Court that his self-description of being “half cut” did not accurately reflect reality. After all he conceded consuming a very significant amount of alcohol in the evening and morning preceding the incident: approximately five regular bottles and two or three king cans of beer, eight ounces of vodka and five ounces of cognac, and 13 ounces of hard liquor.

The Court agrees with the Crown that he must have been heavily intoxicated and not “half cut” and that this greatly compromises his reliability as a witness. [ 16 ] A further concern arises from the accused’s frank admission that he had been emotionally upset and angry because he believed that the complainant had been unfaithful to him, something that the complainant confirmed as having occurred when they separated in 2015.

Given his presumed high level of intoxication, this suggests that it is highly likely that he would have been in an emotionally volatile and highly agitated mental state when the argument arose respecting this subject matter in the basement-related phase of the incident, another reason why the Court questions the reliability of the accused’s testimony. [ 17 ] The Court also agrees that the accused’s inconsistent testimony also raised questions about his credibility.

In particular, his version of the basement “push” wherein the accused initially indicated that he had “nudged” the complainant but she did not fall and his subsequent admission that he had “pushed” her because “I had to get by”, followed by a final concession that the complainant had “staggered and fell... immediately after” he pushed her. [ 18 ] The Court also has difficulty with the accused’s assertion that the complainant was simultaneously physically blocking him from leaving the residence while also ordering him to leave.

This is particularly problematic given that he conceded that he finally left because the police had been called. [ 19 ] The Court must also consider the post-offence conduct of the accused in relation to its analysis. The accused, by his own evidence, acknowledged that the complainant had told him she was calling the police before he left the residence. Indeed, Cst. Forsyth told Court that she had been dispatched to the residence at 5:29 a.m. and had arrived at 5:37 a.m., some eight minutes later. Court was told that the accused was not present when she arrived.

The accused testified that he had only left the house because he wanted to continue drinking. According to him, he went to a nearby neighbour’s residence to do so. The Court perceives such a scenario as highly unlikely. After all, why would anyone presume that a friendly neighbour would welcome such a visit at almost 5:30 in the morning? The accused’s testimony has no air of reality. [ 20 ] The Supreme Court in R. v. White , 2011 SCC 13 , reviewed the principles that must govern the use of post-offence conduct.

The court confirmed that such evidence was not fundamentally different from other kinds of circumstantial evidence. That in some cases it may be viewed as highly incriminating while in others of little consequence. The court made clear that triers of fact must always consider other reasonable explanations for an accused person’s post-offence conduct. With this in mind, this Court confirms that it does not perceive the accused’s explanation for leaving the scene of the incident as a reasonable explanation for his departure.

Indeed, the Court’s perception is that the most likely reason he left the house was to avoid being questioned by the soon to be attending police officers. That his departure reflected consciousness of guilt. [ 21 ] Finally, the Court agrees with the Crown’s submission with respect to the accused’s apparently deceptive and misleading testimony about the complainant’s level of intoxication. That he deliberately painted himself in the best light and the complainant in the worst.

I concur with the Crown that his assertion that she was also intoxicated was related without any reasonable indicia: that she wanted to listen to music and talk. On this point the accused’s evidence was, as submitted by the Crown, totally undermined by the police witness, Cst. Forsyth, who described the complainant as showing no signs of impairment when she arrived at the residence shortly after 5:30 a.m. [ 22 ] For the forgoing reasons, I not only conclude that I should not acquit the accused on the basis of the first W.(D.) test but also on the second prong as well.

There are simply too many issues with his testimony. Put simply, I don’t believe everything he related in court and as such feel that same did not give rise to a reasonable doubt in relation to his innocence. [ 23 ] I now turn to the third W.(D.) test and ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused? [ 24 ] I agree with the Crown that the complainant testified in “a clear and forthright manner.” That she did not embellish or

exaggerate her testimony, acknowledging when she might have been mistaken in her recollection of events. For instance, when pressed on how she knew that the accused had fled on his bike, something she had related in her police statement, she stated “it’s my mistake for assuming that. He was just gone so fast and he’s always on his bike,” something the accused himself confirmed. [ 25 ] The Court acknowledges that the complainant’s police statement was somewhat different from her in-court testimony respecting the details of the upstairs choking allegation.

In court she testified that the accused had grabbed her by the neck when she was on the phone, while police were told that she “picked up the phone” after being choked.

This was a seeming inconsistency but one that the Court determines to be ambiguous because it is quite conceivable that both declarations were true as she may have been on the phone when initially choked and pushed to the floor and as a consequence dropped the phone and then recovered it when the choking stopped. [ 26 ] The Court also concurs with the Crown’s submission that officer Forsyth’s observation of a two to three inch red mark on the front of the complainant’s neck also constitutes corroborative evidence supportive of the complainant’s version of events, that the accused had choked her during the upstairs assault. [ 27 ] For all the foregoing reasons, the Court is satisfied that the Crown has proven its case beyond a reasonable doubt respecting the assault alleged by the complainant.

Accordingly, the Court convicts the accused in such respect and declines to convict with respect to the accused’s basement “push” admission. “Original signed by:” CORRIN, P.J.