r v. Dimitri, 2014 QCCQ 2159

R. c. Zoumpoulias 2014 QCCQ 2159 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-081805-126 DATE: 13 March 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Dimitri Georges ZOUMPOULIAS Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr.

Zoumpoulias is charged with attempted murder, [1] aggravated assault [2] and possession of a weapon for a purpose dangerous to the public peace. [3] In final submissions the prosecution conceded that the evidence could not prove a specific intent to kill and accordingly there will be an acquittal on the first count.

Basic principles [ 2 ] In view of conflicts and contradictions in the evidence, a brief restatement of basic principles is appropriate before undertaking a review and assessment of the evidence. [ 3 ] The presumption of innocence ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt.

Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case. [4] In this respect, the credibility of a witness is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability, it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence.

If there is a conflict in the evidence, the trier of fact is not obliged to make a choice in favour of one version or another.

This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [ 4 ] The Supreme Court has given guidance on these principles in W.(D.) [5] The Court has reiterated that the presumption of innocence and the assessment of evidence, including the credibility of witnesses, are not matters of form but of substance. [6] Whether a judge follows textually and schematically the criteria set out in W.(D.) or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court determines whether the charge is proved or whether there remains a reasonable doubt. [ 5 ] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence.

The Supreme Court has repeated this caution on several occasions. [7] This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden.

The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt. [8] If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted. It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence, an acquittal is required. [ 6 ] Thus Mr.

Zoumpoulias is protected by the presumption of innocence unless and until, at the end of the case and on the whole of the evidence, he is proved guilty beyond reasonable doubt. He has elected to testify in his own defence but, of course, he has nothing to prove. I must examine his testimony to determine whether I believe it or whether it raises a reasonable doubt on its own or in conjunction with all of the other evidence produced by the parties.

I shall examine all of the evidence from the prosecution and the defence to ascertain whether the offence charged in the second count has been proved beyond reasonable doubt. If not, and a reasonable doubt subsists on the whole of the evidence, Mr. Zoumpoulias must be acquitted.

No Dispute [ 7 ] In this case there are several points that are not contested. The evidence leaves no doubt that on 16 November 2012 at around 12h40 the complainant, Mr. C. D., was the victim of aggravated assault when he was intentionally stabbed with a knife at the northeast corner of the intersection of Ste. Catherine Street with St. Laurent. The central question is whether Mr. Dimitri ("Jimmy") Zoumpoulias committed this crime. Mr. Zoumpoulias admits not only that he was in the vicinity of the stabbing but in the precise spot where it occurred at the relevant time.

He does not dispute that he had an altercation with the complainant immediately before the stabbing. Evidence [ 8 ] The evidence includes a film [9] in which a violent altercation involving three men occurs at the corner of Ste. Catherine and St. Laurent. The authenticity and reliability of this film are not in doubt. It is a security video operated and maintained by the City of Montreal and it shows not only the recorded incident with the active participants and bystanders but the relevant dates and times.

The video does not permit facial identification of the participants with precision but it is important evidence when taken together with the testimony of the various witnesses. The video shows no other altercation in the relevant place at the relevant time on the relevant date. Testimony of the Accused [ 9 ] Mr. Zoumpoulias testified that he was struck in the face with a skateboard by the complainant and that he was leaving the scene for medical attention when the stabbing allegedly occurred. He says that he did not previously know Mr.

Desrosiers and that the complainant's attack on him was a gratuitous act of violence. He also says that as he was leaving the scene he saw the person who attacked him with the skateboard being attacked by two other men. [ 10 ] Mr. Zoumpoulias says that around 12h30 he was smoking a cigarette outside a tattoo shop where he had gone to make an appointment. A black man on his right asked for a cigarette, which he provided. Then he heard someone threatening him: “I’m going to kill you, I’m going to burn down your house, I’m going to break your legs.” Then he turned and was struck in the face by a skateboard. Mr.

Zoumpoulias testified that bystanders, notably the black man and another man, set upon the complainant and started hitting him and jumping on him. [10] In short, Mr. Zoumpoulias claims that the complainant attacked him with the skateboard and that he was protected by others. [11] And he claims that he knew that because he needed urgent medical attention he needed immediately to leave the scene. He denies previous acquaintance with the complainant [12] and that he was in possession of a knife on 16 November 2012. He says he is known to many as “Jimmy” and that he has lost several teeth.

But he says categorically that he is not one of the people captured in the video film. [13] At the same time he says that after he was attacked by the complainant with the skateboard he might have tried to kick him. [14] [ 11 ] In short, the testimony is not strictly an account of alibi. He was in the vicinity at the relevant times. He had an altercation with the complainant. He had the opportunity to commit the alleged offence. As noted, Mr.

Zoumpoulias claims that he had left the scene before the stabbing allegedly took place because he was going to seek medical attention for injuries received in the altercation with the complainant. To the extent that he claims not to have been present at the scene when the stabbing occurred his defence resembles an alibi. To be more precise, however, his defence is that the whole of the evidence is not sufficient to prove beyond reasonable doubt his identity at the moment of the stabbing and his participation in it. Testimony of the Complainant [ 12 ] The complainant says that he was intercepted by Mr.

Zoumpoulias as he travelled west by skateboard on the south side of the sidewalk on Ste. Catherine Street. He was accosted in threatening terms by Mr. Zoumpoulias and saw a knife protruding from Mr. Zoumpoulias's pocket. He says that he knew the accused as "Jimmy" and was familiar with him in the neighbourhood where the incident occurred. (He suspected Mr. Zoumpoulias of various offences, including an attempt to rob him two nights before the events in question.) The complainant clearly identified Mr. Zoumpoulias at several points.

He had seen him on previous occasions, including an occasion in which he claims that Mr. Zoumpoulias followed him into several bars. He knew that he was missing teeth. [ 13 ] On 16 November 2012, around 12h30, the complainant saw Mr. Zoumpoulias on the north side of Ste. Catherine in the company of a black man. He says that Mr. Zoumpoulias recognised him. They exchanged words and the complainant saw in Mr. Zoumpoulias’s pocket a knife with a blade of about five or six inches. Sensing that he was in danger, the complainant intentionally struck Mr.

Zoumpoulias in the face with his skateboard and then tried to run away. But he says that he was then set upon by the accused and a black man immediately in front of the Restaurant La Belle Province on the northeast corner of the intersection of Ste. Catherine and St. Laurent. He says that he was punched, kicked and hit with the skateboard by a black man and by Mr. Zoumpoulias. He says that Mr. Zoumpoulias stabbed him in the back and thereafter that the accused ran away to the east on Ste. Catherine while he made his way to the St.

Laurent Metro station. [ 14 ] The complainant says clearly that in the altercation in front of La Belle Province the black man held him down while Mr. Zoumpoulias stabbed him in the back four times. [15] The complainant describes clearly the sequence of events as he recalls them in four phases: the initial confrontation, the chase into Ste. Catherine Street, the skirmish in front of La Belle Province and the conclusion. [16] Testimony of E.D.

[ 15 ] At about 12h30 on 16 November 2012 Mr. E.D. emerged from lunch in La Belle Province on the northeast corner of Ste. Catherine and St. Laurent. At a distance of several metres to the east, on the south side Ste. Catherine, he observes three men in an animated exchange. These three then start running toward the west and then into the street, ending up in front of La Belle Province . Two of the men seized the complainant and then pummelled him with blows. Mr. E.D. then heard a cry that that there was a knife and he saw one of the two assailants stab the third person at least twice.

He tried to intervene and to kick the aggressor but could not. Mr. E.D. clearly saw the knife and looked at the aggressor for several seconds in a fearful confrontation. That person then made off on Ste. Catherine toward the east. Mr. E.D. turned backward to face the victim and observed that there were several onlookers gathered. The victim pulled himself together and made his way north on St. Laurent. [17] [ 16 ] Mr. E.D. testified that the knife he saw was about ten inches in length with a blade of about five inches.

He could not positively identify the three participants in the altercation but he said that the person who had the knife was not wearing a coat. Mr. E.D. was shown the video film of the altercation and was again able to describe the sequence of events from the moment of chase in the middle of Ste. Catherine to the assault in front of La Belle Province . Testimony of Y.T. [ 17 ] At about 12h30 Mr. Y.T. started walking west on Ste. Catherine from the Metropolis. As he approached St. Laurent, he observed an altercation involving three men. He heard one man call that there was a knife but he did not see one.

He did see two men setting about a third who was on the ground by hitting him with a skateboard and kicks. Earlier, he had seen two men speaking with a third who was insulting them. The insults he heard spoken, in English, were: “I will kill you. You tried to rob me. I will go where you live. I will break your legs.” But this person, who was the skateboarder, would become the victim of the other two. Mr. Y.T. was unable to see the faces of the two attackers because they had their backs to him. He was able to give a rough description of the height of these men.

He was also able to describe the location in which the sequence of events took place and he repeated this narrative when he was shown the video film. At the conclusion of the events he observed that the victim had been more seriously injured than he previously realised and he called emergency services (911). [18] The victim said to Mr. Y.T. that he should not call the police. Testimony of J.M. [ 18 ] Mr. J.M. owns a shop on Ste. Catherine that is located a few doors east of La Belle Province on the north side of the street. He offers several services, including tattoos. He testified that on 16 November 2012 Mr.

Zoumpoulias came to the shop around 11h30 to arrange for a tattoo and that he remained there until Mr. J.M. went home for lunch around 12h00 or 12h15. Mr. Zoumpoulias asked whether he could leave his winter jacket with Mr. J.M. under the counter in the shop. He did so but was not there when Mr. J.M. returned to the shop after lunch and did not return for his jacket until six days later. Mr. J.M. said that Mr. Zoumpoulias was familiar to him and he thought his name was “Jimmy.” Assessment [ 19 ] Mr. Zoumpoulias says that he was at the scene at the relevant time around 12h30.

He says that he was with a black man when he was struck by the complainant with the skateboard. He says that he retaliated briefly against the complainant with the assistance of the black man and another. He says that he then left the scene for medical assistance, that he is not one of the persons captured on the video film, and that he had no knife. Moreover, he says he does not know the complainant.

He says, in effect, that he was there at all material times until the last second when another person must have intervened to stab the complainant in the back. [ 20 ] This account corresponds with those of the other witnesses in the broad outline except that no other man intervened in the manner described . The film reveals no such intervention. The other witnesses saw no other man than the one with the skateboard and the black man. The only intervention consistent with the rest of the evidence is that Mr.

Zoumpoulias himself intervened with the black man and stabbed the complainant him with the knife that the complainant and Mr. E.D. had seen in his possession. The evidence proves that the only man accompanying the black man in the aggression against the complainant was Mr. Zoumpoulias. It proves clearly that he had a knife and that he used it to stab the complainant. This proof is not only positive in the sense that it is supported by elements of direct and indirect evidence. It is also an inference that is compelled by the absence of any evidence of another participant in the assault.

There were no other participants than Mr. Zoumpoulias, the black man and the complainant. The evidence reveals no other altercation that could correspond to the description of events provided in Mr. Zoumpoulias’s testimony. Thus, in addition to his denial of the stabbing itself, Mr. Zoumpoulias ’ s testimony cannot be believed on three essential points: that he had no acquaintance of the complainant; that he is not one of the participants seen in the video; and that he had no knife. [ 21 ] The complainant’s evidence is clear, coherent and fluid.

He provides a clear narrative of the events in four phases: the initial confrontation, the chase in the middle of Ste. Catherine, the brawl in front of La Belle Province , and the aftermath as he tried to escape. His identification of Mr. Zoumpoulias is direct evidence that is repeated, sustained and not impeached. It is based on previous acquaintance of Mr. Zoumpoulias, including details such as his name and lost teeth. The complainant saw Mr. Zoumpoulias with the knife and saw Mr. Zoumpoulias attack him in the back with that knife. [ 22 ] The evidence of Mr. E.D. and Mr.

Y.T. is entirely consistent with that of the complainant as to the four phases of the events. It is consistent with what is seen in the video. After the complainant struck the accused with the skateboard, the only participants were the black man and Mr. Mr. Zoumpoulias. Of course, the central question in this matter is the identification of the assailant who attacked the complainant with the knife. The frailties of identification evidence are well known. Error in perception, even honest and sincere error, often raises difficulties with the credibility and reliability of this kind of evidence.

For this reason questions of identification must be approached with vigilance. [19] The direct evidence of Mr. Zoumpoulias’s physical description lacks in visual identification of his face but it is otherwise consistent in every respect with the rest of the evidence. It is consistent, for example, with the evidence of Mr. J.M. that Mr. Zoumpoulias was not wearing a coat because it was kept in his shop.

ORDER FOR THESE REASONS Mr. Zoumpoulias is found guilty on the second count of aggravated assault. There will be an acquittal of attempted murder in the first count. The second count in the indictment will be amended to specify aggravated assault by means of a knife. For this reason there will be stay on the third count. ____________________________________ PATRICK HEALY, J.C.Q. M e Martin Chalifour For the prosecution M e Robert Bellefeuille For Mr. Zoumpoulias Date of hearing: 18 – 19 December 2013, 10 February 2014.