R. v. M.A., 2022 NLCA 41

M.A. (appellant) v. Her Majesty the Queen (respondent) (21/01) Indexed As: R. v. M.A. 2022 NLCA 41 7 C.A.N.L.R. 748 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. July 7, 2022 Publication Ban: In the interest of the proper administration of justice, the identities of M.A. and the complainant in this matter shall not be broadcast or disclosed in any manner ( sections 486.5 and 486.7 of the Criminal Code ).

Summary: M.A. was charged and convicted of attempted murder. The trial judge found that the Crown had proven beyond a reasonable doubt that M.A. had pushed the complainant over the edge of a precipice on Signal Hill with the intention of killing the complainant and committing suicide. M.A. appealed his conviction on the basis that the trial judge erred in his assessment of the evidence. Held: Appeal dismissed. Welsh J.A. (Fry C.J.N.L. and Goodridge J.A. concurring): The trial judge used collateral evidence in assessing the credibility of M.A.

The rule regarding collateral evidence is concerned with limiting rebuttal evidence. The rule does not preclude the judge from using collateral evidence for purposes of assessing credibility (paragraphs 10-11). In this case, M.A. alleged that he had been severely beaten by corrections officers while in custody. The judge did not believe him. The evidence regarding the beating was collateral to the charge of attempted murder, but could be used by the judge in assessing M.A.’s credibility (paragraphs 12-13).

It was open to the trial judge to determine the weight to be given to the evidence and how that evidence may impact other related evidence in assessing M.A.’s credibility. Further, it was not an error for the trial judge to take into account his expectation that M.A. would have reported the alleged assault (paragraphs 14-16). The trial judge gave reasons for rejecting M.A.’s explanation that he had slipped and accidently knocked the complainant down the precipice, and for accepting the evidence of the complainant that he had been grabbed and pushed (paragraphs 18-21).

The trial judge did not misapprehend the meaning of the text message that M.A. sent to the complainant after the incident. While the judge used the language “take back your words” as opposed to “take back what you said”, the meaning of the two statements was the same (paragraphs 22-24). In his

summary, the judge used the words “tackles” and “tackling” as opposed to “grabbed and pushed”, which was the language used by the complainant. While it may have been preferable for the trial judge to use the same language throughout the decision, the word “tackle” may be interpreted as synonymous with the phrase “grabbed and pushed” in the context of this incident (paragraphs 25-27).

Cases cited: R. v. Aalders, (SCC), [1993] 2 S.C.R. 482 R. v. Krause, (SCC), [1986] 2 S.C.R. 466 R. v. Quartey, 2018 SCC 59, [2018] 3 S.C.R. 687 Statutes considered: Criminal Code, sections 239, 229, 24 Other: The Illustrated Oxford Dictionary (Oxford, England: Oxford University Press, Inc., 2003) Webster’s Unabridged Dictionary, second edition (New York: Random House, 2001) Counsel: Bob Buckingham, for the appellant; Shawn I. Patten, for the respondent. The appeal was heard on May 18, 2022 before Fry C.J.N.L., Welsh and Goodridge JJ.A.

The following judgment was filed on July 7, 2022 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A. [1] M.A. was convicted of attempted murder pursuant to

section 239 of the Criminal Code. The trial judge found that the Crownhad proven beyond a reasonable doubt that M.A. had pushed the complainant over the edge of a precipice with the intention ofcommitting suicide and killing the complainant. M.A. appeals his conviction, submitting that the trial judge erred in his assessment ofthe evidence. BACKGROUND [2] On April 7, 2017, M.A. and the complainant, doctoral students at Memorial University of Newfoundland and Labrador, sufferedminor injuries when, together, they tumbled over a steep embankment on Ladies’ Lookout on Signal Hill.

A short distance farther downthe embankment would have led them to a long fall off the cliff to the rocks and the ocean below, and almost certain death. Thisincident occurred following earlier excursions to Signal Hill, one on April 5 and one on April 6, 2017, when M.A. had asked thecomplainant to accompany him to the Hill. As explained by the trial judge (2020 NLSC 93): [2] ...

What is in dispute is whether the incident was accidental – caused by [M.A.] slipping and falling against the Complainant –causing both of them to fall over the cliff’s edge, or whether [M.A.] deliberately pushed the Complainant over the cliff because heintended to commit suicide and murder his friend while doing so. [3] Dr. Shiri, the professor who was supervising the studies of both the complainant and M.A. testified that he (decision of the trialjudge): [22] ... received a message from the Complainant after the incident on April 7, 2017.

The Complainant told him that [M.A.] had triedto kill him and asked him to contact the police. As a result of receiving that message, Dr. Shiri contacted the [Royal NewfoundlandConstabulary]. [4] When M.A. and the complainant returned to the University campus after the incident, the police and campus security took M.A.into custody. In his statement to the police, M.A. said that he did not remember exactly what had happened at Ladies’ Lookout. [5] In assessing the evidence, the trial judge took account of the fact that the mother tongue of both M.A. and the complainant isFarsi.

While the complainant speaks English, “he does so with some difficulty” (decision of the trial judge, at paragraph 6). The Crownand defence each provided a translator to assist in understanding the complainant’s evidence. The judge accepted that the complainant“was careful to ensure that what he said was accurate”, noting that the complainant had reviewed his statement to the police “until he wassatisfied with the contents” (decision of the trial judge, at paragraph 6). M.A. “characterized his command of English as good but notperfect” (decision of the trial judge, at paragraph 82).

ISSUES [6] At issue in this appeal is whether the trial judge erred:

(1) In relying on collateral evidence to assess credibility;

(2) In his assessment of M.A.’s inconsistent statements regarding the incident when he testified at trial and when he made statements atthe time of, or a few days after the incident;

(3) In his assessment of M.A.’s text message to the complainant; and

(4) In his use of the words “tackles” and “tackling”. ANALYSIS [7]

Section 239 of the Criminal Code sets out the offence of attempted murder: Every person who attempts by any means to commit murder is guilty of an indictable offence and liable ... (b) ... to imprisonment for life. [8] Murder is defined in

section 229 of the Criminal Code: Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; ... [9]

Section 24 of the Criminal Code sets out what is necessary in order to prove an attempt to commit an offence:

(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention isguilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether

an act or omission by a person who has an intent to commit an offence is or is not mere preparation to committhe offence, and too remote to constitute an attempt to commit the offence, is a question of law. Collateral Evidence [10] M.A. submits that the trial judge erred in assessing the credibility of his testimony by, along with other evidence, relying onevidence collateral to the charge of attempted murder. Collateral evidence is evidence that is not “strictly relevant to the essential issuesin a case” (R. v.

Aalders, (SCC), [1993] 2 S.C.R. 482, at page 496), or that is “not relevant to matters which must beproved for the determination of the case” (R. v. Krause, (SCC), [1986] 2 S.C.R. 466, at page 474). The rule regardingcollateral evidence is concerned with limiting rebuttal evidence.

The purpose is to prevent “unfair surprise, prejudice and confusionwhich could result if the Crown ... were allowed to split its case” by introducing evidence in response to evidence led by the defence ona matter not relevant to proof of the elements of the charge (Krause, at page 473; Aalders, at page 497). [11] The rule does not, however, preclude the trial judge from using collateral evidence for purposes of assessing credibility. InAalders, Cory J., for the majority, explained, at pages 496 to 497: In Krause, supra, this Court set out the principles governing the introduction of rebuttal evidence.

The general rule is that Crowncounsel, in cross-examining an accused, are not limited to subjects which are strictly relevant to the essential issues in a case. Counselare accorded wide latitude in cross-examination which enables them to test and question the testimony of the witnesses and theircredibility.

However, where the questions asked by Crown counsel are not relevant to an issue essential for the determination of thecase, the Crown is bound by the answers given and cannot present evidence in rebuttal to challenge the statements made by the witness. ... (Emphasis added.) [12] In this case, the Crown did not seek to introduce rebuttal evidence. The questions asked by the Crown in cross-examination arosefrom testimony M.A. gave in direct examination when he alleged that he had been assaulted by corrections officers while he was incustody.

The trial judge used the evidence, along with other evidence, when assessing M.A.’s credibility: [185] One of the most troubling features of [M.A.’s] testimony related to an incident that he described, in one of his rambling answers,unbidden. This related to the day of his arrest when he was taken to the holding cells in the basement of the Supreme Court onDuckworth Street by two or three corrections officers from Her Majesty’s Penitentiary. In his direct examination, [M.A.] gave evidencethat the corrections officers broke one of his fingers. [186] In cross-examination he provided further details.

He said that they put him in Cell number 1. They punched him with their fists,

kicked him in many places. They punched him on his body, put their knees on his neck, bent his fingers backwards – breaking one of them. [M.A.] testified that he was not bloodied in the incident but, presumably, there would have been bruises, contusions, some evidence of the sustained assault that [M.A.] said continued for between thirty to forty-five minutes. [187] He said nothing of this assault to anyone at the Waterford Hospital – where he was lodged for the next 10 days.

I had the impression, perhaps mistakenly, that this was the first time that [his counsel] was hearing the story as well. [188] I didn’t believe a word of it. All areas of the holding cells are under constant video surveillance. Had [M.A.] made these allegations to anyone in authority: – the Waterford Hospital, the [police], Crown attorneys or even his own counsel – any one of them would have asked for a full investigation to be conducted. But he did not complain and all we have is this incredible testimony, in the midst of a trial, on a peripheral matter. [ 13 ] The judge went on to emphasize: [190] ...

A sustained assault by two or three corrections officers of the severity described by [M.A.] would, at the very least, have resulted in observable injuries and a level of debilitation that would have alerted someone in authority that something was amiss. I do not believe that anything of the sort described by [M.A.] took place and it places a pall on all of his testimony. [ 14 ] I do not accept M.A.’s submission that the judge erred in his approach to the assessment of M.A.’s credibility when he concluded that the above finding placed “a pall on all of his testimony”.

It is open to a trial judge to determine the weight he will give to particular evidence and how that evidence may impact other related evidence, in this case, evidence of M.A.’s credibility. The trier of fact may accept some, none or all of a witness’ testimony. Further, a particular finding on the accused’s credibility may colour the assessment of his credibility regarding the remainder of his evidence.

As discussed in Aalders , the Crown is free on cross-examination to “test and question the testimony of the witnesses and their credibility”, including where the testimony relates to a collateral issue ( Aalders , at pages 496 to 497). [ 15 ] Further, it was not an error for the trial judge to take into account his expectation that M.A. would have reported the assault. In R. v. Quartey , 2018 SCC 59 , [2018] 3 S.C.R. 687 , Brown J., for the Court, addressed a similar issue: [3] Nor did the trial judge err by applying generalizations and stereotypes in rejecting the appellant’s evidence.

We agree with the majority at the Court of Appeal that the trial judge’s statements in this regard were directed to the appellant’s own evidence and to the believability of the appellant’s claims about how he responded to the specific circumstances of this case, and not to some stereotypical understanding of how men in those circumstances would conduct themselves. [Italics in original.] [ 16 ] In this case, the judge considered M.A.’s failure to report the assault based on the specific circumstances, including the presence of constant video surveillance in the holding cell along with M.A.’s access to opportunities to complain about his treatment and injuries. [ 17 ] In

summary, there is no basis on which to conclude that the trial judge erred in his assessment of M.A.’s credibility by his use of the collateral evidence regarding the alleged assault. M.A.’s Statements [ 18 ] The trial judge also found M.A.’s explanation contrived when, at trial, he testified in detail how he had slipped and accidently knocked the complainant down the precipice. By contrast, at the time of, or a few days after the incident, M.A. could not remember any of those details.

As a reason for his inability to explain what happened shortly after the incident, M.A. claimed that he was on medication and in shock. However, he led no evidence to substantiate that claim. [ 19 ] It was for the judge as the trier of fact to assess, and, in this case, reject M.A.’s explanation and testimony. In further support of his conclusion, the judge considered M.A.’s evidence in the context of the evidence of the complainant.

To assist in the evaluation, the judge took into account the complainant’s difficulty with English: [170] The Complainant, in his statement to the police, had indicated that [M.A.] had “hugged” him before they fell over the precipice. At trial, he indicated that he had used the wrong word due to his unfamiliarity with English. That unfamiliarity was evident in the fact that the Complainant required the extensive assistance of an interpreter at trial. He testified that the proper word was “grabbed” – a word which he did not know at the time he gave his statement.

He said that he was grabbed from behind by [M.A.] and pushed over the precipice. I believe that the Complainant did not mean to use the word hug but, rather, meant to say that he had been grabbed and pushed over the edge of the precipice. [ 20 ] After considering the evidence, the trial judge concluded: [173] I find that [M.A.’s] explanation is contrived. ... I do not believe [M.A.’s] explanation that he tripped and fell against the Complainant.

Rather, I accept the Complainant’s testimony that [M.A.] grabbed him and pushed him over the edge of the precipice. [ 21 ] There is no basis on which to conclude that the trial judge erred in making that determination having considered the evidence as a whole and having given reasons for accepting the evidence of the complainant and rejecting that of M.A. M.A.’s Text Message to the Complainant [ 22 ] M.A. submits that the trial judge misapprehended the content of a text message he sent to the complainant after the incident.

The judge concluded: [178] I have no hesitation in finding as a fact that [M.A.] asked the Complainant not to tell anyone what had happened because he did not want to face the consequences of what he had done. I am reinforced in this finding by the fact that [M.A.], from the police station, texted the Complainant and asked him to “take back your words”. These are the words of someone who wants a witness to recant. They are

not the words of someone who has just been in an accident. Had that been the case he would have said at the scene, when asked what just happened by the Complainant, that it was an accident (instead of saying he didn’t know and asking for forgiveness), and he would have asked the Complainant to tell the police that it was an accident, not “take back your words”. [179] I do not accept [M.A.’s] version of what happened.

If the Complainant was intent on keeping what happened on Signal Hill a secret [he] would not then text others to tell them that [M.A.] had just tried to murder him. [M.A.’s] explanation is nonsensical. [ 23 ] M.A. submits that the trial judge misstated his text message, which was, “take back what you said”. While the judge used the language, “take back your words”, the meaning of the two statements is the same, and the judge’s conclusion cannot be impugned on this basis. [ 24 ] The trial judge’s inferences based on his assessment of the whole of the evidence were reasonable.

There is no basis on which to conclude that he misapprehended the meaning of M.A.’s text message to the complainant. Consistency in Language [ 25 ] At the conclusion of his decision, in considering whether any of M.A.’s evidence left him with a reasonable doubt about guilt, the trial judge summarized the conduct that comprised the actus reus of the offence. For the first time, the judge referred to M.A.’s action as “tackling” the complainant: [197] ... ... e. [M.A.] positions himself behind the Complainant at the edge of the precipice, tackles and pushes him over the edge.

When they come to a rest, [M.A.] is located three feet below the Complainant and he is holding the Complainant’s wrist. [198] And the following post-offence conduct supports both the existence of a specific intention to kill the Complainant and commit suicide and, as well, the tackling and pushing of the Complainant over the cliff. When asked by the Complainant what happened, [M.A.] does not say that he slipped, or that it was an accident, he says that he doesn’t know what happened and asks the Complainant to forgive him.

He then asks the Complainant not to tell anyone what has happened. (Emphasis added.) [ 26 ] The judge finally concluded: [201] I find that [M.A.] intentionally grabbed and pushed the Complainant over the edge of the precipice. I find that [M.A.] knew, and hoped, that death would ensue. I find that [M.A.] was putting into action a plan that he had formulated as a result of the suicidal ideation that had plagued him for at least the week before April 7, 2017. He was going to commit suicide and he was going to take the Complainant with him.

On April 7, 2017 he put his murder/suicide plan into action. [202] [M.A.’s] evidence, the evidence led on behalf of [M.A.], and all of the evidence led in this case do not cause me to have any doubt about his guilt. [203] The Crown has proved the actus reus and the mens rea beyond a reasonable doubt. I find [M.A.] guilty of attempted murder. [ 27 ] M.A. submits that the trial judge erred when he used the words “tackles” and “tackling”, and that that language amounted to a misapprehension of the evidence. I do not accept that proposition.

The word “tackle” has many denotations, one of which is to “grapple with or try to overcome (an opponent)” or “to seize suddenly” ( The Illustrated Oxford Dictionary (Oxford, England: Oxford University Press, Inc., 2003); Webster’s Unabridged Dictionary , second edition (New York: Random House, 2001), respectively). While it may have been preferable for the judge to use the same language throughout his decision, the word “tackle” may be interpreted as synonymous with the phrase “grabbed and pushed” in the context of this incident.

Further, in his final conclusion, the judge reverted to “grabbed and pushed” which was the language used by the complainant. Conclusion [ 28 ] The trial judge’s determinations regarding credibility of witnesses and proof of the elements of the offence beyond a reasonable doubt, discussed above, are sufficient to dispose of this appeal. Having considered the whole of the evidence, the judge was satisfied that M.A. intended to murder the complainant by causing his death. He applied the appropriate analysis, given that M.A. had testified in his defence (decision of the trial judge, at paragraph 202, cited above).

SUMMARY AND DISPOSITION [ 29 ] In

summary, the trial judge did not err:

(1) In his assessment of M.A.’s credibility by his use of the collateral evidence regarding the alleged assault;

(2) In his assessment of M.A.’s inconsistent statements based on M.A.’s testimony at trial and his statements at the time of, or a few days after the incident;

(3) In his assessment of M.A.’s text message to the complainant;

(4) In his use of the words “tackles” and “tackling”. [ 30 ] There is no basis on which to conclude that the trial judge misapprehended evidence or erred in his analysis of credibility of

witnesses. The judge gave comprehensive reasons for determining that the elements of the offence of attempted murder had been proven beyond a reasonable doubt. [ 31 ] Accordingly, I would dismiss the appeal. Appeal dismissed.