R. v. Pennell Date:, 2016 BCPC 330

Citation: R. v. Pennell Date: 20161101 2016 BCPC 330 File No: 60378-1-K Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. NATHAN AZARIAH PENNELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: S. Smith Counsel for the Defendant: V. Hartney Place of Hearing: Richmond , B.C. Dates of Hearing: May 16, 2016; August 26, 2016 Date of Oral Reasons: October 31, 2016

Date of Written Judgment: November 1, 2016 Introduction [ 1 ] The accused is charged with assaulting Rene Gough. The matter proceeded to trial and evidence was received from Ms. Gough, Cst. Chan, and the accused. Admissions were made which are Exhibit 2. [ 2 ] The task for this court is to determine if the evidence proves the accused’s guilt beyond a reasonable doubt? Evidence of Ms. Gough [ 3 ] In May of 2015, Ms. Gough met the accused. Their relationship began as plutonic but eventually and from Ms. Gough’s perspective became romantic. By October 2015 the accused was living in Ms.

Gough’s home. [ 4 ] On December 21, 2015, at about 2:00 pm, Ms. Gough arrived home. She was happy and excited as she had been at a job interview and received a job offer. [ 5 ] When Ms. Gough entered the home the accused was on the couch and she thought that he was not in a good mood as his mother had refused to give him money for car insurance. [ 6 ] Shortly after arriving Ms. Gough called her mother. A portion of the call was made in the upstairs area of the home and eventually Ms. Gough ended up in the kitchen which was adjacent to the living room where the accused was trying to sleep. [ 7 ] At one stage Ms.

Gough looked into the living room and asked the accused if he was alright. The accused told Ms. Gough to shut her fat fucking mouth. [ 8 ] The accused continued to yell and the two started arguing. The accused got up from of the couch and came towards Ms. Gough while saying: “Just give me a reason to snap.” [ 9 ] Ms. Gough had never seen the accused behave in such an angry way. She felt he was raging. When the accused moved towards Ms. Gough she put her hand up and told the accused if he came any closer that she was going to hit him. The accused knocked Ms.

Gough’s hand aside and moved closer and she responded by slapping him as hard as she could in the upper head area. [ 10 ] The accused responded to the slap by hitting Ms. Gough on the right side of her face. The force of the blow split Ms. Gough’s lip and caused her to fall to the ground. The accused then grabbed Ms. Gough by the throat and brought her to her feet. Ms. Gough started screaming and the accused tried to get her phone. At one stage the accused grabbed Ms. Gough from behind in what she called a “bear hug”. [ 11 ] The two fell to the ground with Ms.

Gough landing on her stomach and the accused straddling her back. Ms. Gough told the accused to stop several times. At one point the accused covered her mouth with one hand and punched her several times in the back of her head and temple area. Ms. Gough tried to punch back behind her and she tried to knock her head backwards into the face of the accused. [ 12 ] The accused stated to Ms. Gough: “Do you want me to kill you?” and “You need to calm down.” [ 13 ] During the struggle Ms. Gough was able to bite the accused’s finger. The accused stopped his attack thus giving Ms.

Gough an opportunity to escape. [ 14 ] Ms. Gough ran outside and collapsed. She then called the accused’s father and a friend. A neighbour then approached Ms. Gough and asked if she was speaking to the police. Ms. Gough told him that she was. The neighbour tried to get Ms. Gough to come into his home and wait for the police. At first Ms. Gough was reluctant but she eventually agreed to go with the neighbour. [ 15 ] Cst. Chan and Cst. Leung responded and they spoke to Ms. Gough in an effort to find out what had happened. Ms. Gough was uncooperative and would not provide any information. Eventually Ms.

Gough gave the police her name and told them she had been hit in the mouth and that she had been punched several times in the head. [ 16 ] Cst. Chan noticed a cut or swelling to Ms. Gough’s upper lip. Cst. Leung noted Ms. Gough had a swollen upper lip, a large swollen area behind her right ear, and lump near the back of her head. [ 17 ] Ms. Gough refused to provide a statement so the officers gave her a business card and left the scene. According to Ms. Gough she sought medical treatment for her injuries that day. [ 18 ] On December 25, 2015, Ms. Gough took photographs of her injuries, (see Exhibit 1).

She then phoned Cst. Chan and met with him on December 31, 2015, and provided a statement. [ 19 ] Ms. Gough was extensively questioned about not originally cooperating with the police. Ms. Gough responded that her children were in the care of the Ministry of Children and Family Development and she was concerned that the events would impact the return of her children. She therefore decided to speak with her social worker before speaking with the police. [ 20 ] Cross-examination revealed Ms. Gough had found derogatory comments posted about her on a web-site called the “Dirty”. Ms.

Gough thought the accused or his friends were responsible for the posting so she sent the accused a Facebook message where she said he

had to take them down or she would have him charged. This message was sent after Ms. Gough had called the police and arranged to meet with them. [ 21 ] During cross-examination Ms. Gough testified when she first saw the police on the day of the incident that Cst. Leung had taken a photograph of her lip. Admissions confirm this did not happen. [ 22 ] It was suggested to Ms. Gough that she was under the influence of alcohol or drugs at the time of the altercation. Ms. Gough denied the suggestion. Photographs Exhibit 1 [ 23 ] The photographs in Exhibit 1 were taken by Ms.

Gough and they show: swelling and bruising to Ms. Gough’s right temple, bruising on Ms. Gough’s left wrist, bruising and a bump behind Ms. Gough’s left ear, bruising on Ms. Gough’s right wrist, bruising on Ms. Gough’s neck, bruising on Ms. Gough’s bicep, and bruising on Ms. Gough’s right elbow. Evidence of Pennell [ 24 ] Mr. Pennell is 23 years old. He works out of town on fishing boats and historically, when he returned to town he would go to the bars and he would use drugs. [ 25 ] Mr. Pennell met Ms. Gough at a local convenience store. Mr.

Pennell thought she looked like an easy target and when asked in cross-examination about meeting Ms. Gough, Mr. Pennell clarified his comment by stating Ms. Gough seemed “down to party and have fun.” He further stated he was hoping to get her number and hook up. [ 26 ] Mr. Pennell approached Ms. Gough and he gave her his phone number. She subsequently called him and according to Mr. Pennell they hung out together. He said they did drugs and partied. Mr. Pennell felt their relationship was platonic. [ 27 ] After knowing each other for approximately five months, Mr. Pennell moved into the town home that Ms.

Gough was renting. The home was sparsely furnished containing only a dining table and a large sectional couch. [ 28 ] When asked about what happened on December 21, 2015, Mr. Pennell started his narrative by advising the court that his previous drug use and drinking combined with a poor memory made it difficult for him to provide a detailed story of what happened. [ 29 ] According to Mr. Pennell he had difficulty sleeping the night before the allegations. He testified he was awake for the majority of the night because he left the door unlocked so Ms. Gough could enter the home when she returned. He said Ms.

Gough eventually came home early the next day, showered and then went out again. [ 30 ] Ms. Gough next returned to the home at approximately 2:30 pm. She was carrying an eight-pack of Molson Canadian Beer Cold Shots. He said she was cracking beers, smoking cigarettes and chatting on the phone while he tried to sleep on the couch. According to Mr. Pennell, he said: “I’m like come on, like I haven’t slept, right? You know I’m really tired, like I haven’t – like I am just trying to catch some sleep.” [ 31 ] Mr. Pennell testified that his comments set Ms.

Gough off and she started swearing and saying it was her house; that she could do what she wanted and that she told him to go live in his car. Mr. Pennell packed a few of his things hoping that she was going to see that he was going to stay in his car. [ 32 ] Mr. Pennell then lay down on the couch and explained that he wanted to sleep and pointed out Ms. Gough had been out all night and drinking. At some point Ms. Gough came over to Mr. Pennell, closed the gap between them and backed him into a corner. She then struck him and he pushed her away. Ms.

Gough then started running around, banging on the walls screaming: “Help me, help me.” Mr. Pennell responded by telling her to calm down and putting his arms around her in a bear hug. At this point Ms. Gough managed to bite Mr. Pennell’s finger. Ms. Gough held Mr. Pennell’s finger clenched in her teeth and he was in extreme pain so he responded by pushing her away with the back of his hand. He later changed his evidence to “directing his palm to the back of her head.” [ 33 ] Mr. Pennell testified the push was quite hard because he wanted to free his finger. Once his finger was free, Ms.

Gough fled the home and Mr. Pennell grabbed a few of his things and left. [ 34 ] With respect to the posting on the website, “The Dirty”, Mr. Pennell became aware of postings related to Ms. Gough. He denied making any posts with the exception of a post where he tried to discourage people from making additional posts. He stated he did this because he did not need the hassle in his life. [ 35 ] When questioned by his lawyer, Mr. Pennell denied knocking Ms. Gough to the ground, punching her in the back of the head or striking her in the face. [ 36 ] During Mr.

Pennell’s direct examination his description of the events changed. He originally testified that Ms. Gough had slapped him on one occasion, however, this evolved to Ms. Gough punching him three times in the face. [ 37 ] Cross-examination of Mr. Pennell resulted in him stating that Ms. Gough had been on the phone for an hour-and-a-half and that he then told her to “shut the fuck up”. This is substantially different from what he originally told the court. [ 38 ] When questioned about his state of mind when he said: “Shut the fuck up”, Mr.

Pennell testified he was not angry rather he was annoyed. [ 39 ] On the issue of Ms. Gough’s sobriety, Mr. Pennell testified he could hear her opening beer; that the case was getting progressively smaller and that she was drunk.

[40] It is noted that Mr. Pennell changed his evidence on the timing of things. Mr. Pennell originally testified that he spoke to Ms.Gough about the noise she was making and that her response was to the effect, of if he did not like it he could live in his car. At whichpoint Mr. Pennell packed some things and lay down to see if she was serious. In contrast, when questioned by the Crown, Mr. Pennellsaid he started to pack and that Ms. Gough then told him to leave. He then added, this is when she cornered him. When asked about theinconsistency Mr.

Pennell explained he was not putting too much thought into his earlier answers. [41] Mr. Pennell was cross-examined on his criminal record. Given the nature of his record and the conviction dates I have decidedto give his criminal record no weight. [42] In conclusion, the essence of Mr. Pennell’s evidence is he denied all of Ms. Gough’s allegations. He did acknowledge thefollowing: pushing Ms. Gough after she struck him three times; placing her in a bear hug for the purpose of calming her and pushing atthe back of her head with an open palm in order to free his finger from her bite.

Position of the Parties [43] The Crown argues the evidence proves Mr. Pennell is guilty beyond a reasonable doubt. The Crown asserts Ms. Gough’sevidence was believable and reliable and confirmed by the injuries documented in Exhibit 1. [44] With respect to Mr. Pennell’s evidence, the Crown argues he was neither believable nor reliable. The Crown also points out;even on Mr. Pennell’s version of events he is guilty of assault by restraining Ms. Gough in a bear hug. [45] The defence argues Ms. Gough’s credibility is such that the court must approach her evidence with extreme caution. Thedefence asserts Ms.

Gough’s lack of cooperation with the police and her explanation, combined with her threatening Facebook messageundermines her credibility. The Law [46] A fundamental principle of our justice system is that an accused person is presumed to be innocent. This presumption can onlybe displaced if, after considering all of the evidence, a judge concludes the evidence establishes the accused’s guilt to the very highstandard of proof beyond a reasonable doubt.

The onus of proving each element of the offence beyond a reasonable doubt rests with theCrown. [47] Proof beyond a reasonable doubt does not require the Crown prove an allegation to certainty. Additionally, it is not sufficientfor a trial judge to convict on the belief that the accused likely committed the offence, or that the trial judge suspects the accused isguilty. Rather, a conviction can only be registered if a judge is satisfied beyond a reasonable doubt as to the guilt of the accused; R. v.Starr (2000), 2000 SCC 40 , 147 C.C.C. (3d) 449 SCC, and R. v.

Lifchus, [1997] S.C.R. 320. [48] In considering the evidence a trial judge must not look at each piece of evidence in a piece meal fashion, rather, the judge mustlook at the totality of the evidence. [49] The evidence adduced in the instant matter makes credibility a central issue. As such, I instruct myself in accordance with R. v.W. (D.), (SCC), [1991] 1 SCR 742. Therefore, if I accept Mr. Pennell’s evidence I must acquit. Even if I do not believeMr. Pennell’s evidence but I am left in a reasonable doubt by it, I must acquit. Lastly, even if I am not left in doubt by Mr.

Pennell’sevidence I still must consider if on the basis of the evidence that I accept, that I am convinced beyond a reasonable doubt as to the guiltof the accused. Analysis of Mr. Pennell’s Evidence [50] I do not believe Mr. Pennell’s evidence. His evidence was internally and externally inconsistent; he deliberately tried to attackMs. Gough’s character; he acknowledged memory problems and he was evasive. In short, Mr. Pennell’s credibility and reliability werewanting to the extreme. [51] Some examples of Mr.

Pennell’s internal inconsistencies include: his chronological ordering of events; the inclusion of sayingMs. Gough hit him three times; his original suggestion that he spoke to Ms. Gough respectfully, which then changed to he told her to‘shut the fuck up”; pushing her with his palm or the back of his hand, and the change from Ms. Gough striking him on one occasion toher punching him three times. [52] Mr. Pennell’s external inconsistency is that neither officer made observations consistent with Ms. Gough being intoxicatedwhereas; Mr. Pennell stated she was drunk. [53] I also note Mr.

Pennell took great effort to portray Ms. Gough as an unsavoury individual. At times he was so focused onpainting Ms. Gough in a negative light that he would fail to respond to questions asked. Some examples include: Ms. Gough used drugs,she drank excessively, she was weird, she was a “drama queen”; she did not look for work, she was a story teller, and she was speakingbadly about him while she ran around with his father. [54] As for Mr. Pennell being evasive, his responses were rambling and without any discernible direction save and except for tryingto paint Ms.

Gough in a negative light. [55] In addition to the above, the fact that Mr. Pennell did not put, “too much thought” into his answers makes it difficult for thecourt to recognize what is reliable and what is not. [56] After considering Mr. Pennell’s evidence together with all of the evidence, I do not believe Mr. Pennell, and his evidence doesnot leave me in a reasonable doubt.

Based on the evidence that I accept, am I satisfied that the accused’s guilt has been proved beyond a reasonable doubt? [ 57 ] This portion of the analysis requires me to consider the evidence of Ms. Gough. After considering all of the evidence, I find that Ms. Gough was a credible and reliable witness. [ 58 ] Ms. Gough’s evidence was primarily internally and externally consistent. Her explanation for not wanting to originally provide details to the police made sense and was believable. As for the suggestion that her evidence was fabricated, the admission of what Ms. Gough told Cst.

Leung was consistent with her evidence. Similarly, the swollen and cut lip that was observed by the officers was also consistent with Ms. Gough’s evidence. [ 59 ] With respect to the Facebook message, as ill-advised as it may have been, it does not detract from Ms. Gough’s credibility. This is because the injury to her lip was observed prior to the message being posted. Further, her message was posted after her appointment to give a statement had been made, thus, there is ample evidence establishing she did not fabricate the events in order to get back at Mr.

Pennell for the postings. [ 60 ] In conclusion, and after considering all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Pennell assaulted Ms. Gough in the manner she described. I therefore find Mr. Pennell guilty. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia