R. v. Colley et Al., 2021 NSPC 37

Provincial Court of Nova Scotia Citation: R. v. Colley et Al. , 2021 NSPC 37 Date: 2021-06-24 Docket: 8223967, 8223968, 8223969, 8223970 Registry: Dartmouth Between: Her Majesty the Queen v. Jermaine Cameron Colley, Alex Newcombe, Walter Newcombe and McKenzie MacDonald Restriction on Publication:

Section 486.4 & 486.5 TRIAL Decision Judge: The Honourable Judge Theodore K. Tax Heard: June 24, 2021, in Dartmouth, Nova Scotia Charge:

Section 344 of the Criminal Code of Canada Counsel: Robert Fetterly, Q.C., for the Public Prosecution Service of Nova Scotia Jeremiah Raining Bird, for the Defence Counsel for Jermain Colley Jennifer MacDonald, for the Defence Counsel for Alex Newcombe Peter Kidston, for the Defence Counsel for Walter Newcombe Quy Linh, for the Defence Counsel for Mackenzie MacDonald A Ban on Publication of the contents of this file has been placed subject to the following conditions:

Section 486.4 & 486.5 : Bans ordered under these Sections direct that any information that will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. No end date for the Ban stipulated in these Sections. By the Court: [ 1 ] The four accused, Jermaine Cameron Colley, Alex Newcombe, Walter Newcombe, and McKenzie MacDonald are jointly charged with having unlawfully robbed Bryson McKinnon, contrary to

section 344 of the Criminal Code . The offence is alleged to have occurred on or about March 13, 2018, at or near Dartmouth, Nova Scotia. The Crown proceeded by indictment and the four accused elected to have their trial in the Provincial Court. Procedural Background: [ 2 ] The trial commenced on January 28, 2019 with the Crown Attorney calling Mr. Bryson McKinnon. The Crown Attorney completed her direct examination of Mr. McKinnon and Defence Counsel for Mr. Alex Newcombe completed her cross-examination of Mr. McKinnon. The continuation of Mr.

McKinnon’s cross-examination by the other three Defence Counsel had to be adjourned to June 11, 2019. Since other witnesses were present and available to be heard on January 28, 2019, the Crown Attorney called two additional witnesses that day: Ms. Cathy Dorrington and Constable Glenn Sawler. [ 3 ] On the June 11, 2019 trial continuation date, Mr. McKinnon was not present in court. As a result, the Crown Attorney requested that the Court issue a witness warrant as Mr. McKinnon had been personally served with a subpoena to attend court on that date.

Defence Counsel opposed the issuance of a warrant and, instead, they asked the Court to declare a mistrial.

[ 4 ] The Court considered that the Crown Attorney’s request for a witness warrant and determined that the Crown had met the R. v. Darville test as stated by the Supreme Court of Canada. Based upon the information related to the Court, the Court determined that it was highly likely Mr. McKinnon would attend on the next date scheduled to complete his trial evidence. The Court secured an early date, which happened to be a full day for the continuation of evidence on June 19, 2019. The Court issued a witness warrant and did not declare a mistrial. [ 5 ] On June 19, 2019, the Court was advised that Mr.

McKinnon had been arrested on the witness warrant and he attended court as directed. Once Mr. McKinnon was on the witness stand, Defence Counsel for Mr. Walter Newcombe, Mr. Colley, and Mr. MacDonald each advised the Court that they had no additional questions for him. The Crown had no questions on re-examination. [ 6 ] Following the completion of Mr. McKinnon’s testimony, the Crown’s next witness was Mr. Colin Joudrey. The Crown Attorney’s direct examination was completed on June 19, 2019. Defence Counsels’ cross-examination of Mr.

Joudrey was expected to be conducted on the trial continuation date of August 15, 2019. [ 7 ] However, prior to the trial continuation date of August 15, 2019, Defence Counsel for Mr. Alex Newcombe made an application to the Court to declare a mistrial. On August 15, 2019, the other three Defence Counsel advised the Court that they were also making an application for the Court to declare a mistrial on the same basis. The mistrial application was based upon issues which Defence Counsel submitted had arisen both during and after the evidence of Mr.

Colin Joudrey on June 19, 2019. [ 8 ] Given the Defence Counsels’ application to declare a mistrial, instead of hearing evidence in the trial on August 15, 2019, the Court heard the submissions of the Defence Counsel and the Crown reply. After hearing those submissions, in an oral decision made on August 15, 2019, the Court dismissed the discretionary application for the declaration of a mistrial. Following that decision, each one of the Defence Counsel, who had represented the four accused persons during the first two days of the trial, made an application to withdraw as solicitors of record.

Their applications were granted by the Court. [ 9 ] As a result of the withdrawal of all four Defence Counsel, the four accused people were left without counsel. They all advised the Court that they wished to retain counsel. A status date was set on September 4, 2019 to see whether counsel had been retained, and if so, then trial continuation dates could be scheduled. [ 10 ] On September 4, 2019, three of the four accused persons confirmed that they had retained new lawyers.

The trial continuation date was set for January 28, 2020, since those three Defence Counsel and the Crown Attorney had said that they were available on that date. Further status dates were set for that fourth accused person to retain counsel. On November 26, 2019 status date, Defence Counsel for the fourth accused person confirmed that he would be available for the continuation date of January 28, 2020. [ 11 ] On January 28, 2020, the trial continued, with each accused person now represented by a new Defence Counsel.

The cross- examination of Colin Joudrey was completed and following a brief re-examination by the Crown Attorney, he tendered his exhibits and closed his case. [ 12 ] When court resumed on the afternoon of January 28, 2020, Defence Counsel for Alexander Newcombe indicated that she would be calling her client as a witness in the trial. Following Mr. Newcombe’s evidence, the parties advised the Court that no further evidence would be called by either side.

As a result, the Court scheduled April 3, 2020 for the hearing of submissions and determined the order in which the submissions would be made. [ 13 ] In addition, on January 28, 2020, the Crown Attorney advised the Court that with respect to Alexander and Walter Newcombe, the Crown’s submissions would relate to the charge before the Court, namely, that they had unlawfully robbed Bryson McKinnon contrary to

section 344 of the Criminal Code . [ 14 ] However, based upon the evidence presented in court, the Crown Attorney indicated that there might be reasonable doubt as to whether McKenzie MacDonald and Jermaine Colley were aware that a robbery was going to take place. As a result, the Crown Attorney stated that, with respect to those two accused persons, his submissions would only be in relation to whether the Crown had established, beyond reasonable doubt, that they had committed the included offence of the assault of Mr. Bryson McKinnon, contrary to

section 266 of the Criminal Code . [ 15 ] Unfortunately, the April 3, 2020 date scheduled for the closing submissions had to be postponed due to the COVID-19 pandemic and the declaration of a public health state of emergency. All trial matters and in-person hearings of the Provincial Court were suspended for a significant time in view of the health and safety measures put in place by the government. Due to the complexities of addressing COVID-19 concerns and scheduling closing submissions when all counsel were available, the closing submissions were scheduled and heard on February 10, 2021.

In making those closing submissions, all counsel had been provided with transcripts of all the evidence heard during the trial. [ 16 ] The Court reserved its decision and originally scheduled the decision hearing date for May 25, 2021. Unfortunately, because of the COVID-19 pandemic and the significant number of cases in Nova Scotia at that time, the Court suspended in-person hearings until mid-June, and the Court’s decision was rescheduled for today’s date.

Positions of the Parties: [ 17 ] It is the position of the Crown that although all four accused were charged with robbery, the allegations in relation to the robbery offence relate primarily to Alex Newcombe and Walter Newcombe. The Crown Attorney submits that Mr. Colley and Mr. MacDonald only participated by applying force to Bryson McKinnon without his consent to do so. [ 18 ] Moreover, the Crown Attorney submits that given the nature of the injuries suffered by the complainant, Mr. McKinnon, there can be no consent to that level of force. However, he does acknowledge that the force applied to Mr.

McKinnon may be justified if the

Court was to conclude that any one or more of the accused persons had acted in their self defence or the defence of property. It is the position of the Crown that neither one of those potential defences would be applicable if the Court accepts the evidence that Alex Newcombe stomped on the head of Bryson McKinnon when he was off the property and laying defenceless on the street. [ 19 ] The Crown Attorney submits that the actions of the four accused were motivated as

an act of anger and vigilante justice when Mr. McKinnon came over to the Newcombe house after Mr. Alex Newcombe’s girlfriend [SJ] told him that she had been raped by Mr. McKinnon. It is the position of the Crown that Alex and Walter Newcombe beat up Mr. McKinnon and robbed Mr. McKinnon by taking his watch and a gold chain. [ 20 ] The Crown Attorney acknowledges that Mr. McKinnon was not able to identify Alex Newcombe as one of the people who attacked him, but he submits that Mr. Joudrey identified all of the people involved and the role that they played in attacking Mr. McKinnon.

The combination of the direct evidence and reasonable inferences from that direct evidence supports the conclusion that meets the definition of a robbery in

section 343 of the Criminal Code , namely, property was stolen from Mr. McKinnon and in doing so at least two of the accused beat, struck or used personal violence against the complainant. [ 21 ] Although the Crown Attorney acknowledges that Mr. McKinnon had some issues related to his ability to recall and relate the events to the Court, likely due to the injuries and concussion that he suffered, his evidence is supported by the evidence of Mr.

Joudrey, photographs, and reasonable inferences from the totality of the evidence. [ 22 ] Ultimately, the Crown Attorney submits that there are a couple of versions of the events which occurred inside and outside the Newcombe residence at 58 Kennedy Dr. in Dartmouth, Nova Scotia on March 13, 2018. As a result, the Court will have to analyze the totality of the evidence in light of the instructions for triers of fact in the Supreme Court of Canada case of R. v. W.(D.) . [ 23 ] In addition, it is the position of the Crown that during Mr.

Joudrey’s cross-examination, based upon his demeanour, flippant and sometimes argumentative responses, it would be unsafe for the Court to convict any of the accused on the evidence of Mr. Joudrey alone. However, the Crown Attorney submits that Mr. McKinnon’s evidence is supported or confirmed by the testimony of other witnesses, the exhibits filed in the trial, and reasonable inferences therefrom. [ 24 ] In the final analysis, the Court ought to conclude that the Crown has established that Mr.

Alex Newcombe did not act in self- defence or in defence of property, and conclude that Walter and Alex Newcombe used personal violence to attack Mr. Bryson McKinnon and commit a robbery by taking his watch and chain. The Crown Attorney submits that they have established, beyond a reasonable doubt, that Mr. MacDonald and Mr. Colley each administered at least one blow to the victim and participated in the beating of Mr. McKinnon by Walter and Alex Newcombe, while the victim was defenceless, without his consent, and thereby assaulted him contrary to

section 266 of the Criminal Code . [ 25 ] Defence Counsel for Mr. Alex Newcombe submits that with the presumption of innocence and the Crown requirement to prove the charge beyond a reasonable doubt, the Crown has not established the robbery charge beyond a reasonable doubt. She points to the fact that Mr. McKinnon could not identify Mr. Alex Newcombe as one of the people who had assaulted him and submits that this inability undermines the overall credibility of Mr. McKinnon’s testimony. In addition, Mr.

McKinnon was highly intoxicated at the time of these events and his evidence was not based upon specific recall of all events but was based upon “bits and pieces” of what he “thinks” or “assumes” occurred. Therefore, his evidence should be given relatively little weight. [ 26 ] For example, Defence Counsel points to the allegations in relation to the watch. Mr. McKinnon stated that he did not know what he was walking into at the Newcombe house and he “thinks” that he took the watch off himself and then started swinging at Mr. Newcombe. Mr.

McKinnon also “assumed” that this was a four-on-one assault but was not certain. Based on what he thought or assumed, as opposed to what he specifically recalled and related to the Court, puts in question the credibility and reliability of Mr. McKinnon’s evidence. [ 27 ] With respect to the evidence of Mr. Joudrey, Defence Counsel for Mr. Alex Newcombe submits that his evidence is completely unreliable and not credible. However, with respect to Mr. Joudrey’s description of the first time that Mr. McKinnon came to the Newcombe house, Mr. Joudrey clearly stated that Mr.

McKinnon had tried to push his way into the house, but Mr. Alex Newcombe pushed him back out and Mr. McKinnon left the area. Based upon that evidence, Mr. McKinnon was the aggressor, and that evidence supports Mr. Newcombe’s position that he acted in self-defence and/or defence of his property in not allowing Mr. McKinnon into the house. [ 28 ] On the second occasion that Mr. McKinnon came to the Newcombe house, Mr. Joudrey claimed that three other people were now in the house and that before the fight started, Mr. McKinnon took his own chain off. However, Mr. Joudrey also said that Mr.

Walter Newcombe ripped the chain off and punched Mr. McKinnon. In relating different versions of events to the Court, Defence Counsel submits that Mr. Joudrey minimized his role to avoid being prosecuted himself, stated that he did not want SJ to be in trouble with the police, and for those reasons, she submits that Mr. Joudrey was prepared to “fudge the truth.” [ 29 ] During the cross-examination of Mr. Joudrey by Defence Counsel for Mr. Alex Newcombe, he acknowledged providing “inaccurate information” at SJ’s trial in Youth Court.

During this trial, she submits that there are numerous internal and external inconsistencies in the evidence of Mr. Joudrey that establish that his testimony is not credible or reliable and should not be accorded any weight. [ 30 ] Defence Counsel for Mr. Alex Newcombe pointed to several passages in Mr. Joudrey’s cross-examination where he acknowledged not being sure of who or how the gold chain and the watch came off Mr. McKinnon. In response to several questions about those key facts, Mr.

Joudrey agreed with Defence Counsel that his evidence on those points in SJ’s trial and this trial should have been the same. He also agreed with Defence Counsel that it was not the same in this trial. [ 31 ] In concluding her submissions, Defence Counsel for Mr. Alex Newcombe submitted that he gave a detailed description of Mr. McKinnon’s evidence arriving at his house, being quite inebriated on three occasions, and that he was not invited to enter his house. In those circumstances, she submits that there is an air of reality to his claim of acting in self-defence as well as the defence of property in

this case. When the Court applies the instructions for triers of fact in R. v. W.(D.), she submits that her client’s evidence should beaccepted, but if not, at a minimum, it raises a reasonable doubt with respect to the charge before the Court. [32] Defence Counsel for Mr. Walter Newcombe submits that Mr. McKinnon’s evidence is neither credible nor reliable, as heacknowledged that he was quite drunk that day and does not have a good memory of the events. Mr. McKinnon is not sure who took hiswatch and only thought that Alex Newcombe took his gold chain.

However, he also stated that he broke the chain and took it off himself. Mr. McKinnon also agreed that he was not sure whether two, three, or four people had hit him. [33] Defence Counsel submits that Mr. McKinnon never stated that he had been robbed by Mr. Walter Newcombe and he was notsure who had hit him. Although there is evidence that Mr. Walter Newcombe was found with the gold chain, Defence Counsel submitsthat the Crown has not established, beyond a reasonable doubt, that Mr. Walter Newcombe ripped the chain off Mr. McKinnon’s neckduring this incident. In fact, there was evidence to the contrary as Mr.

McKinnon had said that he took the watch and chain off himselfand put them down before the physical altercation started. [34] With respect to the evidence of Mr. Joudrey, Defence Counsel for Mr. Walter Newcombe points to several places in the trialwhere his responses were evasive, argumentative, and flippant. Moreover, at several points in his testimony, Mr. Joudrey’s evidence wasinternally inconsistent as well as being externally inconsistent with evidence that he had given under oath at SJ’s prior trial. In the finalanalysis, given the lack of credibility and reliability of Mr.

Joudrey’s evidence, Defence Counsel submits that it would be unsafe to placeany weight upon it. He submits that the Crown has not established the robbery charge or any included offences beyond a reasonabledoubt as against Mr. Walter Newcombe. [35] Defence Counsel for Mr. Colley submits that Mr. McKinnon’s elevated level of intoxication on March 13, 2018 and hisequivocal testimony in Court totally undermines the credibility and reliability of his evidence. Most importantly, there was no evidencefrom Mr. McKinnon to identify Mr.

Colley as one of the people who had allegedly assaulted him. [36] Defence Counsel for Mr. Colley also submits that Mr. Joudrey’s testimony should be given very little, if any, weight as itscredibility and reliability was undermined by evasiveness and his admission that he purposely provided different evidence in SJ’s trialand in this trial. It is the position of the defence that, at several points in Mr. Joudrey’s testimony, his statements amount to an admissionof perjury. In those circumstances, Mr.

Joudrey should be considered as an “unsavoury witness” and the Court ought to apply the“Vetrovec” warning from Vetrovec v. The Queen, (SCC), [1982] 1 SCR 811 and not to rely upon his evidence. [37] It is the position of Defence Counsel for Mr. Colley that Alex Newcombe’s evidence established that Mr. Colley and Mr.McDonald arrived at the house, later after the incident with Mr. McKinnon, to bring rats to feed his snake. There is no credible orreliable evidence that Mr. Colley or Mr. MacDonald participated in an assault of Mr. McKinnon and if the Court was to conclude that hedid hit Mr.

McKinnon one time, that trifling contact does not amount to an assault contrary to

section 266 of the Criminal Code. [38] Defence Counsel for Mr. McKenzie MacDonald essentially made the same submissions as Defence Counsel for Mr. Colley. He submits that Mr. MacDonald and Mr. Colley arrived after the altercation with Mr. McKinnon with food for Mr. Alex Newcombe’ssnake. There is no credible or reliable evidence that Mr. MacDonald was involved in any altercation with Mr. McKinnon. [39] In his reply, the Crown Attorney noted that three of the four Defence Counsel maintain that their client was not even presentwhen an altercation occurred between Mr. Alex Newcombe and Mr. McKinnon.

He submits that those submissions do not square withthe totality of the evidence, primarily from Mr. McKinnon and Mr. Joudrey, who described a multi-person assault, which Mr. McKinnondescribed as a beating both inside and outside the house, and then collapsing unconscious on the street. Overview of Trial Evidence: [40] Mr. Bryson McKinnon was 21 years old when he testified on January 28, 2019 with respect to the events which occurred, about14 months earlier, on or about March 13, 2018. He stated that he had been a “friend with benefits” of a young female [SJ] for aboutthree or four years.

Although he stated that he did not have a good memory of events, Mr. McKinnon thought that he had seen SJ onMarch 12 or 13, 2018. He was “pretty sure” that he was “hanging out” with her in Bedford at the Comfort Inn hotel the night before theincident. [41] Mr. McKinnon was not sure what his plan with SJ was for the next day after spending the night together at the hotel. Hethought that they were going to spend the day together, but then he recalled that he had dropped her off at an address on Kennedy Dr. inDartmouth. He did not recall what time it was when he dropped SJ off on Kennedy Drive.

After that, he met his friend, John, and theyspent the day together at the hotel or just driving around. He was not sure how long they stayed at the hotel, but they were drinkingalcohol and Mr. McKinnon stated that he was “probably pissed, loaded” indicating that he was quite drunk at that time. [42] A little later that afternoon, Mr. McKinnon said SJ was texting him and they argued a bit, but she asked him to come and gether at a house on Kennedy Drive. He thought that he went with John to pick her up on Kennedy Drive around 4:00 p.m. He did notrecall the house number. After picking her up, John, Mr.

McKinnon, and SJ drove around for a while, but then they got into an argumentand she left the car in Dartmouth, near the Lawton’s store, just off Main Street. They both got out of the car and were running around theparking lot as they argued. Then, a lady in a car approached SJ and asked her if she needed a drive. SJ left with that woman. [43] About an hour later, SJ sent him another text and they continued to argue, but she asked him to come and get her where he hadpreviously picked her up on Kennedy Drive. John drove him back to Kennedy Drive, Mr.

McKinnon got out of the car, and John wentahead, turned around, and came back to the area. It was at this point that Mr. McKinnon was “pretty sure” that he met Alex when he waswalking towards the Kennedy Drive house. He added that he had never previously met “him,” referring to Alex. [44] As Mr. McKinnon was walking up to the Kennedy Drive house, Alex met him outside and asked him if he was Bryson towhich he said yes. As they continued to walk towards the house, they were talking and, then, Mr. McKinnon said that he saw a couple

of other cars pull up and a couple of other guys got out of them. Mr. McKinnon said that those two cars had parked in such a way that they blocked John’s car on the street. Mr. McKinnon told the two guys to let John go by, because “he had nothing to do with what was going on.” They moved their cars to let him out. [ 45 ] Mr. McKinnon said that he had “no clue” what he was walking into, but in his words, “It turned out to be getting the living shit kicked out of me.” Coming back to the brief conversation with Alex as they were walking to the house, Mr.

McKinnon confirmed that he was asked if he was Bryson, he said yes, and he only recalls Alex saying something like “just follow me” as they went into the house. The other two guys came into house shortly after Mr. McKinnon, because they had just moved their car out of the way to let John move his vehicle. [ 46 ] Mr. McKinnon confirmed that, once he entered the house, the people in the house were Alex, an older person who he was “pretty sure” was Alex’s uncle, two other guys, and SJ was also there. Once in the house, Mr. McKinnon only had a brief conversation with SJ, but he did not recall what they had discussed.

He stated that his “whole reason” for going to the house was to have a conversation with SJ because she had texted him and told him to come there. [ 47 ] When asked why the conversation with SJ was not long, Mr. McKinnon said that he is “pretty sure” that is when his watch and chain were taken and “fists started swinging.” He did not recall who took his watch off his wrist, but he thought it was Alex. He did not recall if he said anything in response. As for the chain around his neck, Mr.

McKinnon said, “I just ripped that off and broke it because I did not want them to have it intact.” The gold chain ended up in someone’s hands, but he did not recall who had it. [ 48 ] In terms of the assault, Mr. McKinnon said that after he entered the house to try and talk to SJ, he could not recall if he even got to speak to her, because the next thing that happened was that Alex took his watch and tried to take his chain. Mr. McKinnon reacted to his property being taken by Alex and swung at him. The next thing he remembers is “just getting pelted with fists” in his head.

He guessed that he got “smashed a couple of times” and then he was thrown outside, and his head was smashed into the ground. [ 49 ] Mr. McKinnon stated that most of the blows were to his head after he was thrown to the ground in the front yard on the walkway. He was “pretty sure they just stomped my head in the ground a couple of times.” He assumed that four people had struck him and the four accused in court were the ones who did that. He did not have a specific recollection of how many people had struck him, because he did not even know what was going on. Mr.

McKinnon had a broken nose, internal bleeding in his brain, and some hemorrhaging, as well as a concussion. [ 50 ] The gold chain and Mr. McKinnon’s Nixon watch were recovered later and photographs of those two objects were tendered as Exhibit 1. Mr. McKinnon said that the value of his watch was $400, and the value of the gold chain was about $100. The police returned those items to him, but he has not fixed the chain. [ 51 ] With respect to the injuries that he sustained, Mr. McKinnon said that he was not sure who beat his head into the ground.

He originally answered that it was “probably pretty quick” but then said that he “really got the shit kicked out of me in, like, five minutes.” [ 52 ] When asked again if he recalled who beat his head into the ground, Mr. McKinnon said that he did not remember. At that point, the Crown Attorney asked him if he recalled testifying in SJ’s trial approximately six months earlier and they provided a portion of the transcript of that trial to refresh his memory. Mr.

McKinnon reviewed what he had said in SJ’s trial and stated that it was Alex who beat his head outside the house, while he was down on the ground. [ 53 ] After the beating stopped, Mr. McKinnon said that Alex told him “to get the fuck out of there.” He had a specific recollection of that statement because right after that, he stumbled out onto the road and passed out. Mr. McKinnon thinks that one of the people involved the beating came and dragged him off the road. [ 54 ] Mr. McKinnon “guessed” that the beating lasted about five to 10 minutes, from what he could remember. Then, the Crown Attorney showed Mr.

McKinnon four black-and-white photographs, which he identified. He pointed out the numerous bruises on his head and face which were caused by the beating that he sustained on the date in question. The four photographs were filed as Exhibit 2. He recalled that the photographs were taken about a half-hour to an hour after the attack but was not sure who had taken them. Although he confirmed that the photographs accurately showed what he looked like after the assault, he stated that a couple of days later, “the swelling puffed right up.” [ 55 ] Mr.

McKinnon confirmed that he was beaten up on the front walkway to the house on Kennedy Drive and when the beating ended, he got up, stumbled onto the road, and passed out. He believes one of the assailants came and dragged him off the road to the curb. After that, Mr. McKinnon recalled getting up from the snowbank, walking a few steps, and then collapsing into a snowbank in front of the house. Mr. McKinnon recalled that SJ came out of the house and she called 911. [ 56 ] On cross-examination by counsel for Mr. Alex Newcombe, Mr.

McKinnon confirmed that the snowbank that he fell into was probably icy as there had previously been some freezing and melting. He confirmed that he had told the police that SJ was his girlfriend and that they were in an on/off relationship. He denied having done cocaine with her at the hotel but stated that he and SJ had consumed about half of a 40-ounce bottle of Jack Daniels that evening. [ 57 ] Defence Counsel asked Mr. McKinnon whether SJ had made an allegation against him that he had sexually assaulted her. Mr.

McKinnon stated that he was not aware of that allegation because he had not sexually assaulted SJ. He also said that he was not aware of any allegation made by SJ that he had thrown her down on the floor during the evening of March 12, 2018. [ 58 ] Defence Counsel suggested that Mr. McKinnon had assaulted SJ on the morning of March 13th during an incident in the car, when she asked to be dropped off. Mr.

McKinnon stated that what actually happened was that SJ punched him in the nose, causing a nosebleed, and as she tried to punch him again, he pushed her hands out of the way and, in doing so, they hit the radio in the car. Mr. McKinnon stated that is why she said she hurt her hand. [ 59 ] Mr. McKinnon confirmed that when he dropped SJ off on Kennedy Drive around noon on March 13, 2018, it was near a blue

apartment building on Kennedy Drive. After dropping SJ off, he agreed with Defence Counsel that she did not go into the apartment building, but rather got into a black Mazda. He did not see who was driving that black car. Although Mr. McKinnon had earlier said that he had been in an on-off relationship with SJ for about three or four years, it did not upset him to see her get in the other car, because their relationship was “very weird.” [ 60 ] Mr.

McKinnon stated that after he dropped SJ off in front of the blue apartments, which were a short distance away from 58 Kennedy Drive, he drove back to the hotel and continued drinking alcohol with his friend John. A short time later, Mr. McKinnon received a text message from SJ to come back and get her. [ 61 ] After getting that text message, John drove his BMW and the two of them went back to Kennedy Drive and picked up SJ. Mr. McKinnon said that SJ came out and they went to a Lawton’s drug store where they got into a verbal argument and she got a drive back to Kennedy Drive with someone else.

A short time later, Mr. McKinnon stated that he got another text message from SJ and, this time, she told him to come to 58 Kennedy Dr. and pick her up. [ 62 ] When John stopped his BMW in front of the house, Mr. McKinnon denied that he got out of the car or that he walked up to the front step of the house. He said that SJ came out of the house with a backpack. When it was suggested that he had walked up to the stairs and that Alex stopped him from coming up the steps when he said that he was there to pick up SJ, Mr. McKinnon did not remember that happening.

When it was suggested that it was possible that it happened, Mr. McKinnon only recalled SJ coming out with a backpack. [ 63 ] Mr. McKinnon disagreed with Defence Counsel’s suggestion that the first time he came to the Kennedy Drive house he was told to leave, and he went back to his friend’s BMW and they left. [ 64 ] However, Defence Counsel questioned Mr. McKinnon about a statement made to the police while he was in the hospital where he stated that he had dropped his girlfriend off at this house, and she was mad at him, so he went back there because he wanted to talk to her and solve the problems.

Defence Counsel then read a portion of the statement to the police: “The first time I went there, this guy came to the door and he was in my face and he was yelling and screaming at me.” Mr. McKinnon did not recall saying that, but added that the statement was taken while he was in the hospital and, at that time, the doctor had informed him that he had a concussion, broken nose, and there was bleeding in his head. [ 65 ] Mr. McKinnon maintained that the first time he was on Kennedy Drive on March 13, 2018, he dropped SJ off up the street near some blue apartments and she walked up the street.

A little later, on March 13, 2018, Mr. McKinnon got a text from SJ to come and pick her up at 58 Kennedy Drive. On that second occasion when he was on Kennedy Drive, Mr. McKinnon said that he stayed in the car and SJ came out of the house with a backpack. [ 66 ] After that, Mr. McKinnon said that his friend John was driving his BMW with him and SJ and they drove around for a while, but then Mr. McKinnon and SJ got into a verbal argument when the car was stopped in a parking area near the Lawton’s store just off Main Street.

There, SJ got out of the car and started running around the parking lot and screaming at Mr. McKinnon. He was chasing after her and trying to calm her down. The argument had started after he asked SJ why he was dropping her off and picking her up from the address on Kennedy Drive. He told her that if she wanted to be with him, then choose him, but if she wanted to be with the other guy, then choose him, go back to Kennedy Drive and stop texting him. The argument in the parking lot ended when a lady offered SJ a drive, she got in her car, and they drove off. [ 67 ] After that, Mr.

McKinnon and his friend John drove around in his BMW for a while, but then he received another text message from SJ to come back to Kennedy Drive and get her. He agreed that the house which he went to at SJ’s request was a duplex with three concrete steps, with railings on the side going up to the front door. When he entered the house, Mr. McKinnon observed three or four people in front of him, two people off to the side, and he recalled seeing SJ seated on the couch with someone else. [ 68 ] Mr.

McKinnon disagreed with Defence Counsel’s suggestion that he had walked directly into the house and that no one was outside the house after his friend, John, had dropped him off. Mr. McKinnon stated that Alex came out of the house asked him what his name was, and he said it was Bryson, and then they walked into the house. There were two or three other guys also outside the house and they followed him into the house. He felt that the other people were “friends” of Alex Newcombe but did not know their names. [ 69 ] Mr.

McKinnon agreed with Defence Counsel that he was quite drunk, close to blacking out, and might have been stumbling a bit when he got into the house. When it was suggested that he did not really recall exactly what had occurred that day, Mr. McKinnon conceded that not “every single detail was fully clear” but he clearly remembered “bits and pieces” of the incident. [ 70 ] Mr.

McKinnon disagreed with Defence Counsel’s suggestion that he had walked in the house through the unlocked front door, sat down on a short couch, while three individuals were sitting on a long couch, one of whom was SJ, and then Alex Newcombe stood up and asked him to leave. Mr. McKinnon stated that, after he entered the house, he was pushed to sit down on a couch, then he was pulled up by Alex Newcombe, but was not asked to leave. After that, Alex said, “Nice watch,” to Mr. McKinnon and after Alex Newcombe removed Mr. McKinnon’s watch by pressing the clasp to release the strap and stole his chain, Mr.

McKinnon took a swing at him. [ 71 ] With respect to the number of people involved in beating him during the physical altercation, Mr. McKinnon stated that he knew there were four individuals in the house, he was not sure whether they all hit him, but he was “pretty sure” that two or three of them did hit him. Defence Counsel pointed to the transcript of the SJ trial where Mr. McKinnon stated that there were five individuals in the house and during that trial, he stated that all five of them had assaulted him. [ 72 ] With respect to his statement to the police, taken at the hospital, it was pointed out that Mr.

McKinnon had said that there may have been five or six guys involved. Mr. McKinnon did not recall the details of what he had said to the police at the hospital because he was drunk and “beat to death almost.” However, he did generally recall speaking to the police at the hospital and recalled that they took pictures of him there. He saw those pictures for the first time, during the trial. [ 73 ] Defence Counsel posed questions which suggested that Mr. McKinnon slipped and fell on his own as he was walking towards

the road. Mr. McKinnon stated that he had not fallen down the steps of the house because “they threw me out of the house.” He added that, at page 113 of the transcript of January 28, 2019: They literally beat me in the house and then threw me out the door and then I was on the ground there, and they beat me on the ground and then they told me to get the fuck out of here. So, then I got myself up, walked, like five steps and then collapsed on the road. [ 74 ] Mr. McKinnon stated that the first time that he became aware that SJ had alleged that he had sexually assaulted her was during SJ’s trial.

She had face-timed him while he was in the hospital and that is when he learned that SJ and others had been arrested. After he was released from the hospital, Mr. McKinnon and his friend, John went to the police station and picked up SJ after she was released by the police. Mr. McKinnon agreed with Defence Counsel that he and SJ went back to the hotel and they spent the night together there. [ 75 ] The next witness called by the Crown was Ms. Cathy Dorrington who confirmed that she resided at 58 Kennedy Drive in Dartmouth, Nova Scotia, on March 13, 2018.

She confirmed that Walter Newcombe is her brother and Alex Newcombe is her son. On that date, she had been out of the house all afternoon and evening, arriving at her home sometime after 1:00 a.m. on March 14, 2018. When she got back to her house, it was surrounded by police officers. She asked them what was going on and they told her, but she waited outside for another hour or two. [ 76 ] While she was in conversation with the police, Ms. Dorrington asked if there was something that she could do to speed up the process.

They told her that, if she signed a consent for them to enter the home with her, it would move things along. She signed a consent to enter the house with her, not a consent to search the house. [ 77 ] Ms. Dorrington spoke to her son on the telephone before she signed the consent for the police to enter the home. She asked him if he had something in the house that did not belong to him; he said yes but did not tell her what it was. The police told her that they were looking for a watch and chain. [ 78 ] After the consent was signed, Ms.

Dorrington and a police officer went into the house and she passed him one of the items that they were looking for, which was on her coffee table. She believed that the only thing that was handed over to the police was a watch. Her son told her that he had come into possession of it after there was an argument, that it just did not go as planned, and that there was a scuffle and an argument between him and somebody else. She did not observe any signs of a scuffle in the house. [ 79 ] On cross-examination by Defence Counsel for Mr. Alex Newcombe, Ms.

Dorrington said that she had telephoned her son and it was possible that she had told her son that the police were looking for a watch. She could not really recall the conversation that she had with her son between 1:00 a.m. and 3:00 a.m. in the morning, but he could have told her that he did not know what the police were looking for. [ 80 ] On cross-examination by Defence Counsel for Mr. Walter Newcombe, Ms. Dorrington confirmed that when she came into the house with the police, she saw a watch on the coffee table which was in plain view.

She agreed that if someone had wanted to hide it, they certainly had ample opportunity and time to do so before the police entered the house. She did not see any blood on the floor in the living room, but did not really go looking for anything like that on the floor. Outside the residence, she saw “a couple of drops” of blood off the step and onto the driveway, but no big puddle of blood. [ 81 ] In answer to a couple of questions by Defence Counsel for Mr. MacDonald, Ms.

Dorrington stated that she could not remember if they had a snake in March 2018, but they did have a snake in the house at one time. [ 82 ] Constable Glenn Sawler of the Halifax Regional Police stated that immediately after he started his shift on March 13, 2018 around 7:00 p.m., he was sent to Kennedy Drive in Dartmouth to cordon off a crime scene.

Just before his shift started, there was a report that a male had been found unconscious in a snowbank on the street. [ 83 ] About an hour later, just after 8:00 p.m., he was called to assist with the search of a person who was in custody at the Dartmouth police office. Constable Sawler identified where that person was sitting in the courtroom. The person searched was very cooperative throughout. Constable Sawler was told that there was a small pocketknife in a back pocket of the jeans and he also found a gold chain in that person’s left front pocket.

The chain was approximately 18 to 24 inches in length, broken at one of the links, but the ends were still joined by the clasp. [ 84 ] Constable Sawler stated that the chain shown in Exhibit 1 looked like the chain that he found in the man’s pocket. He had not taken the photograph but confirmed that the chain was broken at a link and that it was still clasped together. [ 85 ] On cross-examination, Constable Sawler confirmed that Mr. Walter Newcombe was cooperative and volunteered where the pocketknife was located.

The police officer did not know if the gold chain had a special brand name or monogram on it, he simply described it as a thin gold chain. He also confirmed that he had not interacted with anyone involved in the incident at 58 Kennedy Drive. He had guarded the scene on the roadway until he left to assist with the search. [ 86 ] The final witness called by the Crown Attorney was Mr. Colin Joudrey. At the outset, Mr.

Joudrey stated that he was not “enthusiastic” about testifying as he was “nervous about retaliation.” He stated that he recalled the events of the day and the evening of March 13, 2018 “for the most part.” On that day, he stated that he was at Alex Newcombe’s house and that he has known Alex Newcombe for a long time. He stated that the people living at that house with Alex were his mother, Cathy and his uncle, Walter Newcombe, but he did not know the name of Alex’s sister. He identified Alex and Walter Newcombe in Court. [ 87 ] On March 13, 2018, Mr.

Joudrey recalled receiving a text message from SJ, who he knew through Alex Newcombe, which asked him to come and pick her up. She was at the bottom of Kennedy Drive outside a blue apartment building. In the text message, she told Mr. Joudrey that she had been raped by Bryson McKinnon and she wanted to tell Alex Newcombe about that. Mr. Joudrey told her that she should not tell Alex without him being present as well. Mr. Joudrey confirmed that he did not know Mr. McKinnon and had not

met him before March 13, 2018. [ 88 ] Mr. Joudrey was shocked when he received that text message from SJ and added that he wanted to be with her when she told Alex so that he could try and calm him down “if something was to happen.” Mr. Joudrey met SJ in the early afternoon and they drove around for about 30 minutes in his black 2012 Chevy Cruze car to calm her down before going to Alex Newcombe’s house. When they got to the house, Alex was the only one at home. Mr. Joudrey and SJ sat down and SJ was quiet while Alex was asking, “What’s wrong? What’s wrong?” [ 89 ] While SJ and Mr.

Joudrey were driving around in his car, they had discussed a little bit of her allegation of being raped and that she wanted to tell Alex about it. Mr. Joudrey told SJ that he should be present when she told him to “help you with this.” [ 90 ] Mr. Joudrey was also asked to describe the Newcombe house on Kennedy Drive and he said that it is painted yellow, has two entrances: a front door and a side door.

When you enter the house through the front door, there is a wall and as you turn left there is a couch by the window and there is also a couch on the back wall with the table in the centre, a safe, and the kitchen and bathroom. [ 91 ] Mr. Joudrey said that the first time he saw Mr. McKinnon, he was in a late-model blue BMW-3 series four-door car with his friend, in front of Alex’s house. He was pretty sure that the friend was driving because Bryson was intoxicated. [ 92 ] Mr. Joudrey said that Mr. McKinnon got out of the car and came up to the front door and just outside the door, Mr.

McKinnon and Alex Newcombe had conversation which also involved “a little bit of pushing and shoving”, but there was no punching. He did not hear what they were saying because he was still sitting on the couch and did not move from there. He was not sure whether SJ was behind Alex or with him, but he was sure that she remained in the house and was not outside the house with Mr. McKinnon. [ 93 ] Alex Newcombe was standing in the front doorway and he was blocking the door so that Mr. McKinnon could not get in the house. Mr. Joudrey noted that Mr. McKinnon’s speech was slurred, and he believed that Mr.

McKinnon was intoxicated. The first time Mr. McKinnon came to the Alex’s house, Mr. Joudrey observed some physical contact between Alex and Bryson. Bryson pushed Alex first and Alex pushed him back. Then Bryson left in the car with his friend. [ 94 ] After Mr. McKinnon left the house, Alex came back in the house and a little while later, Mr. Joudrey said that SJ walked out of the house and he assumed that Mr. McKinnon and his friend picked her up, but he did not see them pick up SJ. A short time after SJ left the house, she sent a text message to Alex to tell him that Mr.

McKinnon and his friend had picked her up and that she was going to the group home. Mr. Joudrey saw the text message from SJ to Alex and then they left his house in Mr. Joudrey’s car, with Alex driving it to look for her. [ 95 ] Alex Newcombe and Mr. Joudrey began driving around looking for SJ because they wanted her to come back to his house and did not want her to be with Mr. McKinnon because of what she said had happened. While they were driving around looking for SJ, Mr. Joudrey and Alex were talking and Alex asked him something along the lines, “Do you have my back if something happens?” Mr.

Joudrey told Alex Newcombe no, that he would not be fighting for him and he said that Alex’s only response was, “That’s fine.” [ 96 ] Mr. Joudrey was asked if anything else was said by Mr. Alex Newcombe. Initially, he said that there was nothing else mentioned. However, the Crown Attorney provided Mr. Joudrey with a transcript of his evidence during SJ’s trial, a few months earlier, to refresh his memory. In SJ’s trial at page 30, Mr. Joudrey had said that Alex asked, “Will you have my back?” and he answered, “No way, buddy. I said no.” Then, Alex said, “That’s fine,” but in SJ’s trial, Mr.

Joudrey added that Alex then said, “So I’ll get someone else.” Mr. Joudrey confirmed that the review of the transcript refreshed his memory about what Alex had said at that time. [ 97 ] Mr. Joudrey also said that while they were driving around looking for SJ and after Alex Newcombe had said, “I’ll get someone else,” Mr. Newcombe did take some steps to secure someone else by making phone calls to MacKenzie MacDonald and Jermaine Colley. The phone calls were made when he and Mr. Alex Newcombe were back at his house. No phone calls were made from the car.

In fact, when the two of them got back to the Newcombe house, SJ was already there, on the front porch. [ 98 ] When Alex Newcombe and Mr. Joudrey got to the group home, SJ was not there so they drove back on the highway and came to a four-way stop just off the highway on Main Street near a Petro Canada station. When the two of them pulled up to the red light, there was a BMW car beside them and he saw that Bryson McKinnon and his friend were in the car, but SJ was not there. Although Alex Newcombe and Mr.

Joudrey were in the right turn lane, they went straight and followed the BMW back to Alex’s house, but the BMW kept going and in Mr Joudrey’s word, “disappeared.” [ 99 ] Once Alex Newcombe and Mr. Joudrey were back at his house, that is when he started making phone calls to his friends. As mentioned previously, SJ was on the porch when they got back to the house. Mr. Joudrey said that he was seated on the couch in the living room while Alex Newcombe was pacing around the living room making the phone calls. SJ was seated beside him on the couch. [ 100 ] The next thing that happened was that while Mr.

Joudrey was sitting on the couch beside SJ he heard her side of the conversation on the phone with Bryson McKinnon to come pick her up and take her home. Shortly after that phone call to Mr. McKinnon, the BMW car came back to the house, but so did Cameron and Mackenzie. [ 101 ] At that point, the only three people in the house were Mr. Joudrey, Alex Newcombe and SJ. Mr. Joudrey said that the only conversation between them was him saying to Alex Newcombe that he did not “need to do this and it’s a waste of time.” The reference to “no need to do this” was clarified by Mr.

Joudrey as a message to tell Alex Newcombe that there was no need to have a fight and that he also told him “it was stupid.” [ 102 ] Mr. Joudrey said that when Mr. Alex Newcombe’s two friends arrived at the house, their cars blocked the BMW in which Mr. McKinnon arrived. He noted that, at this point, it had started to snow. Then, Alex Newcombe went out of the house to the BMW and “brought Bryson inside.” On this point, Mr. Joudrey stated that he did not specifically see what happened outside because he was still seated on the couch, but they walked into the house together.

[ 103 ] After Mr. McKinnon entered the house, he sat on the couch by the window, not the couch against the wall where he and SJ were sitting. Mr. Joudrey said that Alex was standing in front of Mr. McKinnon and at that point, Walter Newcombe came into the house as well. Mr. Joudrey said that it was “calm” for a bit, but then Alex Newcombe got in Bryson McKinnon’s face and “it just went downhill from there.” [ 104 ] In response to the Crown Attorney’s question as to what specifically happened at that point, Mr. Joudrey stated that Walter Newcombe punched Mr. McKinnon in the head and then ripped the chain off Mr.

McKinnon’s neck. Then, Alex Newcombe asked Mr. McKinnon to take his watch off but did not hit him at that point. Then, Alex Newcombe threw Mr. McKinnon onto the couch and told him to give him the watch. Mr. McKinnon replied that he would not give him the watch and in response, Mr. Joudrey stated that Alex Newcombe threatened him and after that, Mr. McKinnon took off his watch. [ 105 ] The next thing that occurred, according to Mr. Joudrey was that “then the beating started.” Mr. Joudrey did not participate in the beating, and he said that for the most part, the people hitting Mr.

McKinnon were Alex Newcombe and Walter Newcombe. He stated that Mr. MacDonald and Mr. Colley each “hit him maybe once.” Most of the hits were to Mr. McKinnon’s head. Mr. McKinnon got up and tried to make it to the door and then Alex Newcombe got him outside the house. Once they were outside the house, Mr. Joudrey did not initially get up from the couch to watch what was going on outside, but he heard sounds like “ooh, aah, ooh.” [ 106 ] Mr.

Joudrey stated that he was very familiar with Wally Newcombe because he had met him as many times as he had met with Alex Newcombe and that the two of them were often together. He was very familiar with McKenzie MacDonald because they had previously worked together. With respect to Jermaine Cameron Colley, he knew him through his friendship with Alex Newcombe and that he had previously been with Mr. Colley and Mr. Newcombe “a fair bit.” [ 107 ] In terms of the participation of Mr. Colley and Mr. MacDonald in the incident, Mr. Joudrey said that they each one of them hit Mr. McKinnon one time with their fists.

After hitting Mr. McKinnon, Mr. Joudrey said that Mr. Colley and Mr. MacDonald stayed by the door to the house. He said that Mr. McKinnon was not really doing anything in response as, in Mr. Joudrey’s words, “he didn’t really have a chance.” He estimated that this beating lasted for about 45 minutes in total, because it continued outside for about 15 to 20 minutes. [ 108 ] Although Mr. Joudrey had stated that he had not watched what was going on outside, he did say that he then got up to see what was going on outside and that is when he saw Mr. McKinnon “just stumbling around on the street.” Although Mr.

Joudrey confirmed that he did not go outside the house, he looked outside and also saw Mr. McKinnon crawling on the street in the snow. The only other person outside on the street with Mr. McKinnon was Alex Newcombe. [ 109 ] Mr. Joudrey confirmed that SJ did go outside the house after a while to see if Mr. McKinnon was okay and he is pretty sure that she called the ambulance. [ 110 ] There was no mess in the living room and nothing had really moved except a table before the incident in the house. [ 111 ] At that point, during the hearing on June 19, 2019, the Crown Attorney completed her direct examination of Mr.

Joudrey. Mr. Joudrey’s cross-examination and the trial continuation was scheduled for August 15, 2019. However, on that date, a mistrial application was made, and no evidence was heard. After the Court dismissed the mistrial application, all four Defence Counsel withdrew as solicitors of record. Once new Defence Counsel were retained, the cross-examination of Mr. Joudrey was conducted on January 28, 2020. [ 112 ] On cross-examination by Defence Counsel for Mr. Alex Newcombe, Mr.

Joudrey confirmed that he had provided a statement in this matter to Constable Doyle on May 10, 2018, after he had been arrested on the robbery charge and he confirmed that he had testified in SJ’s trial in Youth Court. [ 113 ] Mr. Joudrey agreed that, at that time when he was arrested, he had just obtained a new job and had three kids at home and was worried that he would have to spend the night in jail. He agreed that Constable Doyle had told him that if he was not involved in the incident, the police officer would re-evaluate Mr. Joudrey’s situation. Mr.

Joudrey agreed that he told Constable Doyle he had been able to talk himself out of trouble in the past and had described a situation in high school when his girlfriend’s ex-boyfriend wanted to fight him. [ 114 ] Then, Defence Counsel posed questions with respect to how the whole incident on March 13, 2018 began. She suggested that Mr.

Joudrey had spoken to SJ more than once after the incident about it and his initial answer was, “I have no idea,” and when it was suggested again that it was more than once, he said, “Sure, we’ll go with that.” He agreed with the suggestion that when he gave his statement to Constable Doyle, he knew that SJ had been charged with an offence, but in his opinion, she had not done anything wrong. [ 115 ] When Defence Counsel suggested that, in fact, SJ had started this series of events of March 13, 2018 with her text message, Mr.

Joudrey’s reply was, “That’s hit or miss.” When pressed about SJ sending a text message, his response was, “It is still up in the air. Because no one’s ever going to know. Because no one’s seen the phone.” [ 116 ] Then, when Defence Counsel suggested that the first thing that occurred in relation to this matter was that Mr. Joudrey had received a text message from SJ on March 13 th , his answer was, “That had nothing to do with this.” However, with a follow-up question, Mr.

Joudrey did agree that he had received a text message from SJ while he was in Enfield and, at the time, he agreed that he knew that SJ was dating his friend, Alex Newcombe. [ 117 ] Following that exchange, Defence Counsel asked Mr. Joudrey how long he had known Alex Newcombe, adding that he had previously told the Court that he had known him for about three years. Mr. Joudrey stated that he never said that, but maybe he meant three years, and added, “Three years is ridiculous.” After that response, Defence Counsel referred to the transcript of Mr.

Joudrey’s earlier evidence in this trial where he said he had known Alex Newcombe for a long time, and then added, “Three years, probably.” Mr. Joudrey’s reply was that was not the truth, he did not know him for three years but agreed that is what he had previously said, and agreed what he had earlier said was not accurate.

[ 118 ] With respect to SJ’s text that Mr. Joudrey had received on March 13, 2018, he agreed that in her text, SJ had told him that she had just been raped, she wanted to tell Alex Newcombe what happened, and that his response was to not to do that, but rather to wait and we would tell him together. He also agreed with the suggestion that he had insisted that SJ not say anything to Alex Newcombe until he was with her. He agreed with Defence Counsel’s suggestion that SJ was on Kennedy Drive at the time, he was still in Enfield, and that SJ was close to Mr. Newcombe’s place on Kennedy Drive. [ 119 ] Mr.

Joudrey confirmed that it took him about 20 minutes to drive his car over to Kennedy Drive, SJ had waited for him, and he picked her up. Then, he agreed that the two of them went for a short drive and talked, then went to Alex Newcombe’s house. Mr. Joudrey also agreed that, despite saying that he wanted to be present when SJ told Alex Newcombe about what had happened, he only remained in the house for “a little bit” of their conversation and then, he left the house. [ 120 ] At this point, Defence Counsel again turned to the transcript of Mr. Joudrey’s earlier evidence where Mr.

Joudrey had stated that he had heard none of the conversation between SJ and Alex Newcombe. On the follow-up question as to whether he had heard some of their conversation, Mr. Joudrey said, “I might have. I might not have.” Following several questions about what his evidence was, on cross-examination Mr. Joudrey said that he “heard some” of the conversation and then left. He agreed that his statement made in June 2019 was “inaccurate.” [ 121 ] In this trial and in SJ’s trial, Mr.

Joudrey had stated that he left the Newcombe house for a period of time – in this case he had estimated that it was about 20 to 30 minutes, whereas in SJ’s trial it was estimated as five to 10 minutes. He agreed that he did not know how long he was out of the house while SJ and Alex Newcombe were talking. He agreed that it could have been from five minutes and 30 minutes. [ 122 ] Mr. Joudrey agreed with Defence Counsel that in his May 10, 2018 statement to Constable Doyle, he had said that when he got back to the house SJ was there and Alex Newcombe was making calls to his friends. However, in this trial, Mr.

Joudrey had testified that the phone calls happened later. Mr. Joudrey agreed that the calls were made later and agreed that what he had said to the police officer about the timing of the calls to the friends was not accurate. Those calls to the friends were made later. [ 123 ] Mr. Joudrey was then asked again whether he had spoken to SJ between the time of the incident on March 13, 2018 and his statement to Constable Doyle on May 10, 2018. He answered, “Yes, I was. Or was I?” Defence Counsel asked him to tell the Court which it was, to which Mr. Joudrey responded, “That’s for you to find out.

Isn’t that your job?” After direction from the Court to answer that question, Mr. Joudrey agreed that he had talked to SJ to fill in some “blanks.” [ 124 ] Defence Counsel suggested that, when he returned to the Newcombe house, Mr. Joudrey, SJ, and Alex Newcombe smoked a joint together. He stated that he did not remember that and when asked whether it was possible, Mr. Joudrey said it was not possible because he would have remembered that. [ 125 ] With respect to layout of the living room in the house, Mr.

Joudrey agreed that there was a longer couch under the window and that the couch against a wall was a loveseat. Mr. Joudrey stated that he was sitting on the couch by the window, with his back to the window. He agreed that, at a certain point, he turned around and, through the window, he saw a blue BMW-3 series car pull up in front of the house. From where he was sitting, he could see that there were two people in that blue BMW and he later learned that the person who walked towards the house was Bryson McKinnon. [ 126 ] From where he was sitting, Mr.

Joudrey said that Alex Newcombe went to the doorframe to ensure that Mr. McKinnon did not come into the house, but there was no confrontation. Mr. Joudrey understood that Mr. McKinnon was not invited there, and that he was not welcome there. He thought Mr. McKinnon was really drunk and stumbling around, but he could not hear what was being said. However, Mr. Joudrey did see Mr. McKinnon push Alex Newcombe and then Mr. Newcombe pushed him back. There was no hitting, there was only a push and shove back, and then Mr. McKinnon left in the BMW. [ 127 ] Defence Counsel confirmed that it was Mr.

Joudrey’s evidence that very soon after that he realized that SJ had left the house without saying goodbye and he did not know where she had gone. He did not hear her go out the door. Mr. Joudrey confirmed that then Alex Newcombe got in the driver’s seat of his car, with him seated in the passenger seat, and then they went looking for SJ. Shortly after driving around looking for SJ, Mr. Newcombe got a text from SJ, which Mr. Joudrey saw, saying that she was at the group home. [ 128 ] Mr. Joudrey confirmed that when they got to the group home, SJ was not there.

On the way back to the Newcombe residence, he agreed that they pulled up beside a blue BMW-3 car at a stoplight at Main Street and Lakecrest, by a PetroCan gas station. They were surprised to see the car there and decided to follow the BMW to see where it was going. Defence Counsel pointed out that although Mr. Joudrey had just said that he and Mr. Newcombe were looking for SJ, during his statement to Constable Doyle he had told the police officer that he and Alex got in his car to find Bryson McKinnon and his friend. Mr. Joudrey stated that they were in his car to find SJ. [ 129 ] Mr.

Joudrey said he did not stay in the house smoking joints while Alex Newcombe went looking for SJ in his car. He reiterated that the two of them had gone to look for SJ, but did not find her, so they returned to the house. On arrival, they saw that SJ was there, sitting on the step. Then, the three of them went into the house and Alex Newcombe started making phone calls to MacKenzie MacDonald and Jermaine Colley. [ 130 ] Mr.

Joudrey had earlier said that he heard part of the conversation between Alex Newcombe and his friends, but was not really paying attention to what was being said because he knew “what was going down” and wanted to “stay out of it.” Mr. Newcombe’s phone calls were being made while he was sitting on the loveseat beside SJ. At that point, Mr. Joudrey was shown his transcript of his evidence during SJ’s trial, where he told that Court that SJ was not present when those calls were made to the friends. Mr.

Joudrey reiterated that SJ was seated beside him when those calls were made. [ 131 ] When Defence Counsel suggested that Mr. Alex Newcombe did not make any calls that afternoon, Mr. Joudrey said that he had made those calls. At that point, Defence Counsel questioned Mr. Joudrey about whether Alex Newcombe had a snake and he agreed that Alex did have a snake, and in fact he was with him when he got it. Mr. Joudrey agreed that the snakes only need to be fed every week or two and they eat large things like mice. However, Mr. Joudrey disagreed that Alex Newcombe’s call to the two friends related only to

bringing food for the snake. [ 132 ] Following those questions, Defence Counsel questioned Mr. Joudrey about the second time that Mr. McKinnon came back to the house with his friend in the blue BMW. He confirmed that he was beside SJ when she called Mr. McKinnon and asked him to come back to the house and pick her up. Mr. Joudrey had understood that SJ had alleged that Mr. McKinnon had raped her the night before, and agreed that she had asked to be picked up and added that SJ “was weird.” [ 133 ] At this point, there was a great deal of confusion as to whether Defence Counsel was questioning Mr.

Joudrey about the first time that Mr. McKinnon had come to the house with his friend in the blue BMW or the second time that they came back to the house as result of SJ calling Mr. McKinnon to come and pick her up at the Newcombe house. After reviewing the transcript of his earlier evidence, wherein Mr. Joudrey stated that “Alex went out of the house to the BMW and brought Bryson inside,” Mr. Joudrey confirmed that Mr. McKinnon was “walking with these people” and although he may have been dragged out of the car, he was not dragged into the house by Alex Newcombe or the others. [ 134 ] Once Mr.

McKinnon was inside the house, he sat down on the couch by the window. Mr. Joudrey was on the loveseat by the wall with SJ. Mr. Joudrey disagreed with Defence Counsel’s suggestion that Alex Newcombe never left the house and that Mr. McKinnon had walked into the house on his own and sat down in the living room on a couch. Mr. Joudrey acknowledged that he cared for SJ and that he did not want her to leave with a guy who he thought had raped her the previous evening and was, that afternoon, stumbling around drunk. [ 135 ] Mr. Joudrey disagreed with the suggestion that Mr.

McKinnon had just walked into the house when only SJ, Alex Newcombe, and Mr. Joudrey were there in the living room and that everything was calm. He said that the next thing that occurred was Alex Newcombe got in Mr. McKinnon’s face, told him he was not welcome in his home, and then the first thing that actually happened was Walter Newcombe ripping the chain off Mr. McKinnon’s neck. [ 136 ] ,At this point, Defence Counsel read an excerpt of Mr. Joudrey’s evidence during SJ’s trial which referred to the fact that Alex was talking to Mr.

McKinnon on the couch and then he told him, “You are not leaving the house.” Mr. Joudrey had stated in that other trial, as he did in this trial, that he was sitting on the couch with SJ and he thought this was not good, because “Bryson was blocked in by everybody.” [ 137 ] Defence Counsel continued referring to SJ’s trial transcript where Mr. Joudrey had previously said that Bryson was on the couch, Alex was in front of him, Wally was beside Alex, and Mackenzie and Cameron were by the door so that Bryson had nowhere to go.

As Bryson stood up, he was getting mouthy with Alex and that is when Alex said, “That is a nice chain,” and ripped it off his neck. [ 138 ] After hearing what he had said during SJ’s trial, Mr. Joudrey speculated that he might have said that for her, but what he had said at that time was not true. He stated that was not the way things happened, and that in SJ’s trial, he “probably got it mixed.” He reiterated what he had said earlier in this trial, that Walter Newcombe had ripped the chain off Mr. McKinnon’s neck, not Alex Newcombe.

When Defence Counsel asked if he would be surprised by the fact that, in this trial, Mr. McKinnon actually stated that he had ripped the chain off his own neck, Mr. Joudrey said that it did not surprise him to hear that. [ 139 ] With respect to the watch, in this trial, Mr. Joudrey had stated that Alex said, “Give me the watch,” and Mr. McKinnon gave him the watch because Alex had threatened him. He agreed that he did not really remember what words were said. He also agreed that, in this trial, he had said that Mr. McKinnon took the watch off himself. However, Defence Counsel pointed out that in SJ’s trial, Mr.

Joudrey had said that Walter Newcombe took the watch from Mr. McKinnon. Mr. Joudrey acknowledged that he might have “mixed things up”. Defence Counsel suggested that Mr. Joudrey was now not certain how the chain or watch came off, to which he answered, “Sure.” [ 140 ] With respect to the physical altercation, Defence Counsel pointed out that Mr. Joudrey told the police, in his statement, that Walter Newcombe hit Mr. McKinnon first. Then, Defence Counsel suggested that, during SJ’s trial, Mr. Joudrey had said that McKenzie MacDonald had hit Mr. McKinnon first, to which Mr.

Joudrey responded, “No,” in stating that was not his evidence during SJ’s trial. [ 141 ] As a follow-up to that question, which is found at page 80 of the transcript in this trial, Defence Counsel read an excerpt of Mr. Joudrey’s evidence at page 40 of SJ’s trial transcript, which appears to be a follow-up question with respect to who ripped Mr. McKinnon’s chain off his neck. The question posed by Defence Counsel and Mr. Joudrey’s answer in this trial was as follows: Q. line 1 and you’re talking about the watch… The chain here, “Ripped it off, and Wally did the same with his watch. And Mackenzie hit him once.

And Cameron did the same.” A. Correct. [ 142 ] In this trial, during his direct examination, Mr. Joudrey had previously said that during the physical altercation with Mr. McKinnon, Mr. MacDonald and Mr. Colley had probably only hit Mr. McKinnon one time. In terms of this exchange, I find that his answer during SJ’s trial is not inconsistent with what he had said on direct examination during this trial. I find that, even without having the full context of that series of questions leading up to those responses during SJ’s trial, that Mr. Joudrey has clearly stated the number of punches thrown by Mr.

MacDonald and Mr. Colley at Mr. McKinnon during the physical altercation, and not a reference to the order in which they were thrown in relation to anybody else. [ 143 ] Mr. Joudrey agreed with Defence Counsel that he was not sure how long the fight inside the house lasted, stating that it was “pretty quick” and it then went outside. Once the fight went outside the house, Mr. Joudrey agreed that he did not go out of the house and he added that he did not look at what was going on outside.

[ 144 ] The next series of questions posed on cross-examination were by Defence Counsel for Mr. Walter Newcombe. Defence Counsel asked whether his testimony was accurate, and Mr. Joudrey stated that some things may have been forgotten since it has been two years since the incident occurred, but he has also been able to piece things together or he recalled things, given the number of times that he has been in court. While he acknowledged that he had a couple of conversations with SJ before his statement to the police officer in May, 2018, Mr.

Joudrey stated that she did not fill in any gaps for him, nor did he have any conversations with Alex Newcombe or any of the others after the incident. [ 145 ] Defence Counsel suggested that the police had a theory that SJ had set this whole incident up to get Bryson McKinnon over to Alex Newcombe’s house to beat him up. Mr. Joudrey understood that their theory was SJ had orchestrated this as retaliation because she was alleging Bryson McKinnon had raped her. Mr. Joudrey stated, that at the time, he thought that SJ had been raped, but he now does not think that happened.

He also stated that he does not think SJ set this all up. [ 146 ] Defence Counsel suggested that Mr. Joudrey made up a story to talk himself out of any trouble for himself as well as SJ, because he was starting a new job and did not want to be arrested for a robbery charge. Mr. Joudrey responded that he told Constable Doyle what had happened. Although he agreed that he did not want SJ or himself to get in trouble, Mr. Joudrey repeated that what he had told Constable Doyle was not made up and that “everything that I said was pretty bang on.” [ 147 ] On further questioning, Mr.

Joudrey acknowledged that a lot of what he had said at SJ’s trial on July 30, 2018 in Youth Court was in his word, “hogwash.” He made the point that he may have “mixed up” some things during SJ’s trial because he “did not really care about that trial at all.” When asked why he didn’t care about SJ’s trial, Mr. Joudrey said that he knew what was going to happen and didn’t care what the outcome would be, because she would be bouncing back-and-forth between a group home, jail, and her mother’s house. [ 148 ] When it was pointed out by Defence Counsel that Mr.

Joudrey’s evidence had changed from what he had told the police to what he said at SJ’s trial and now in this trial, he said that, if it did not match, it was probably due to the fact that this incident has been before the Court for over two years. He agreed that the Crown Attorney had provided him with transcripts of his police statement, his evidence during SJ’s trial on July 30, 2018, as well as the transcript of his earlier evidence in this trial from June 2019. Mr.

Joudrey agreed that he could have used any one of those transcripts to refresh his memory, but chose not to read them. [ 149 ] Defence Counsel confirmed that during SJ’s trial on July 30, 2018, his evidence was that Alex Newcombe had said to Mr. McKinnon, “That’s a nice chain,” stood up and then ripped it off his neck. Mr. Joudrey agreed with Defence Counsel that was not correct, even though his evidence was given just four months after the incident. Mr.

Joudrey said that he got the names “mixed up” and agreed that both trials involved the same incident. [ 150 ] When questioned why it was not the same evidence in both trials, Mr. Joudrey repeated that he “did not really care what I said at that court because I knew nothing was going to happen anyway.” When asked if he cared what he was saying in this court, Mr. Joudrey said, “Yes, I do because there are two people in this room that should not be here,” and added that was his “personal opinion.” [ 151 ] Defence Counsel for Mr. Colley asked Mr. Joudrey if, during his conversation with Mr.

Newcombe in the car about having his back, whether there was any discussion about stealing or committing a robbery. Mr. Joudrey answered no, there was no discussion whatsoever about stealing something from Mr. McKinnon. Mr. Joudrey said that it just happened, it was not premeditated. [ 152 ] Defence Counsel posed several questions in relation to Mr. Joudrey having a black belt in karate and why he did not get involved in the altercation to defend Mr. McKinnon. He simply answered that his knowledge of karate would only be used to defend himself and since he was not in the fight with Mr.

McKinnon, he did not want to get in the middle of the fight between the other people and Mr. McKinnon. [ 153 ] When it was suggested that Mr. Colley had not struck Mr. McKinnon, Mr. Joudrey repeated, on two occasions, that Mr. Colley had hit Mr. McKinnon “once,” but it was “barely even a hit.” When he was asked about his statement to the police officer that there were two people who should be going to jail and two who should not, Mr. Joudrey said that this case was about a robbery and not a beat down, adding, once again, that Mr. Colley had only hit Mr.

McKinnon a couple of times - one being a hit and one that was barely a hit. When questioned about what force was involved when Mr. McKinnon was “hit” a couple of times, Mr. Joudrey responded, “Enough force to hurt.” [ 154 ] The final questions on cross-examination were posed by Defence Counsel for Mr. MacDonald. Mr. Joudrey confirmed that there was a snake in the house at that time but he had no idea if the snake had been fed that day or there were any mice in the house to feed the snake. [ 155 ] In response to a question as to whether SJ seemed upset when Mr.

McKinnon arrived at the house, he stated that she was probably not happy to see him there. Mr. Joudrey agreed that she did look upset, but he was not really trying to calm her down, he was just sitting beside her. When Defence Counsel suggested that Mr. MacDonald arrived at the house after the so-called “beat down” had occurred, Mr. Joudrey disagreed and stated that Mr. MacDonald’s sole purpose for being there, was not just to feed the snake. [ 156 ] On re-examination by the Crown Attorney, Mr. Joudrey said that he had not lied or intentionally made things up during the interview with Constable Doyle.

He also stated that when he arrived at the house with SJ, he stayed for a bit of their conversation and then he felt that she did not need him there so he left for a while. [ 157 ] With respect to where Mr. Joudrey was seated the first time that Mr. McKinnon came to the house, he said that he was seated on the couch by the window when he saw the blue BMW arrive. From there, he saw the “little altercation” which was a “push and shove” incident at the door and then he moved over to the loveseat and sat beside SJ. [ 158 ] The Crown Attorney then questioned Mr. Joudrey about the location where he and Mr.

Alex Newcombe were in his car and ended up beside the blue BMW at an intersection just off Main Street. Mr. Joudrey explained that his car was a 2012 Chevrolet Cruze and the other car was an early 2000’s BMW 325 I, four-door sedan. Mr. Joudrey drew a diagram of the street and where the BMW and

the Chevy Cruze were located which was filed as Exhibit 3 in the trial. [ 159 ] He explained that although the BMW was in the lane to turn left, it went straight. Mr. Alex Newcombe and Mr. Joudrey were in the lane to go straight or turn right, so they followed the BMW across the intersection. [ 160 ] With respect to the sequence of things occurring and who took the watch or the chain, Mr. Joudrey said the order in which things happened was first the chain was taken, then the watch, and then Mr. McKinnon was hit. With respect to who took the chain or the watch, Mr.

Joudrey stated that he probably “mixed up” the two names but did not do so intentionally. With respect to the statement that two individuals should not be here, Mr. Joudrey stated that he was referring to McKenzie MacDonald and Cameron Colley “because this is a robbery, not a beatdown” trial. He confirmed that neither one of them had taken anything that did not belong to them and that he was referring to the fact that they each hit Mr. McKinnon once with some force and another hit with barely enough force to hurt. [ 161 ] Mr.

Joudrey was asked how Bryson McKinnon came to be outside the house after his things were taken. Mr. Joudrey said that Mr. McKinnon was “forced outside” by Alex Newcombe. When asked if he was aware of whether Mr. McKinnon had been injured by the blows, Mr. Joudrey initially said that he did not know that, then immediately added that Mr. McKinnon was probably injured because “there was blood on the snow outside.” He did not notice blood on Mr. McKinnon while he was in the house, he could not tell and for that matter, he was not

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