R. v. Marrington Date:, 2014 BCPC 35

Citation: R. v. Marrington Date: 20140310 2014 BCPC 0035 File No: 94748-1-K Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ERLE MARRINGTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. I. Currie Counsel for the Accused: Mr. S. Tate Place of Hearing: Kamloops , B.C. Dates of Hearing: January 31, May 13, July 2, September 20,

October 18, 2013 and January 10, 2014 Date of Judgment: March 10, 2014 [ 1 ] David Marrington is charged with assaulting Shirley Dovauo with whom he was living at the time. Ms. Dovauo testified at the trial delivering viva voce evidence that was entirely inconsistent with the statement she had given to the police two days after the incident. Her testimony at trial was entirely incredible. Her facial expressions, her demeanour and her tone left me in no doubt that she was lying about the circumstances. On the other hand, her taped statement to the police was compelling.

Her demeanour was sincere, defeated and resigned. [ 2 ] Ms. Dovauo claimed that on July 14, 2012 she had been drinking with Mr. Marrington. No one else was present and they were at home where they lived together. She said she remembers nothing else about the 14 th , having blacked out. She says when she blacks out she forgets things and then they come back to her a couple of days later. This is how she hoped to explain the incomprehensible disparity between her statement to the police and her evidence at trial. [ 3 ] Ms. Dovauo said that she went to the washroom while she was drunk and fell into the toilet.

She struck her head and upper body in the front. She had bruising to her eyes and her shoulders. The photographs taken following the injuries show a significantly bruised right eye entirely at the front of her eye, a moderately bruised left eye also entirely at the front of her face and some bruising above her right eyebrow with an abrasion. There is also a large round bruise at the front part of the side of her left arm and a large round bruise on the top of her right shoulder. There is a large bruise on her back over her right shoulder blade. [ 4 ] Ms.

Dovauo said that she next remembered waking up in bed on the Sunday. She got up to go to the washroom and saw her face. She told Mr. Marrington she was going to go for a walk. He was still in bed sleeping. She woke him to tell him she was leaving after she was dressed. Ms. Dovauo said that she wanted to piece things together and was still feeling a bit intoxicated. [ 5 ] Ms. Dovauo said that she walked down to the bowling alley and called her daughter. Ms. Dovauo testified that she was too embarrassed to tell her daughter she was drunk and fell into the toilet so she said that Mr. Marrington hit her.

She said she called her daughter up because she wanted to see her. She said she called her daughter because she did not get to see her very often, but would be embarrassed by her appearance, which was why she made up the lie. This was so entirely illogical it could not be followed. If there was any element of truth to this, Ms. Dovauo picked a very peculiar time to visit with her daughter. I do not believe her. [ 6 ] When Brittany Dovauo, her daughter, saw her mother’s face she demanded to know what had happened. Ms. Dovauo said she told her daughter she just wanted to talk to her and got in the car. Ms.

Dovauo claimed she told her daughter that Mr. Marrington hit her, but she was lying because she was angry that Mr. Marrington said he wanted to leave her. [ 7 ] Brittany Dovauo grabbed Ms. Dovauo’s keys from her and went into their home. When she returned, she asked Ms. Dovauo what she wanted to do and Ms. Dovauo asked to go to the police. It was Ms. Dovauo’s decision to go to the police, not her daughter’s. [ 8 ] Ms. Dovauo claimed that she told the police she was assaulted by Mr. Marrington because he was talking about separating. She said they were fighting.

He said things were not working out so they should probably separate. He cited her drinking. She believed he was having a hard time with her being unemployed. He also did not appreciate her going downtown where she volunteers at New Life Mission. She said she did not want to separate, but he said they had to do something because it was not working. She claimed that the argument was left at that. [ 9 ] Ms. Dovauo did not know at the time that Mr. Marrington would be charged, although he had previously been charged and convicted of assaulting Ms. Dovauo.

She did not think it would go to the extreme it did and was not foreseeing what lying would do. Despite knowing that he had been charged on the previous occasion, she claimed that she thought the police would just go over and ask him what happened. She thought he would tell them she was drunk and fell into the toilet numerous times. In delivering this testimony, Ms.

Dovauo did not even attempt to sort out her insensible testimony or to sound like she was telling the truth. [ 10 ] There was also some entirely insensible testimony regarding the conflict between her prior statement that “it” happens all the time, a couple of times a week. At trial she said there had only been one prior incident and claimed that she was not referring to Mr. Marrington when she said “it” happened all the time. She said that she was referring to people she associated with. She could not explain then what she meant by saying that it did not happen “to this extreme”.

She flipped between claiming that these were altercations downtown she was referring to or arguing and having misunderstandings with Mr. Marrington. Her testimony was entirely unpersuasive. [ 11 ] Ms. Dovauo first agreed that Mr. Marrington typically grabs her face to make her back off. Then she said that he does not grab her face. She said he does not quite put his hand in her face. Then she said they were discussing separating; he was under a lot of stress because she had not been working. He said she needed to get a job.

She said she then went to the washroom and fell, following which she went out for a cigarette and fell again. Then she just went into the living room and sat on the couch to watch television. He sat and watched television with her as well. [ 12 ] When confronted with the inconsistencies in her statement, her responses were inconsistent, improbable and incredible. [ 13 ] In cross examination, Ms. Dovauo claimed that she considered both of them to be alcoholics, but she drinks harder and more frequently. She said he binge drinks but does not drink every day.

She said she knows people who hang around the library all the time. She has altercations with people down there. She said she has come home to Mr. Marrington sporting bruises, cuts or otherwise from these altercations.

[ 14 ] Unbelievably, in cross examination, she said she had her injuries when she came home on Friday, the 13 th later in the afternoon. When he asked what happened, she told him she had an altercation at the library. This is inconsistent with her testimony that she got the bruises falling into the toilet, then falling down the stairs. [ 15 ] She said when she came home on the Friday, she was stumbling, yet he offered her a drink of alcohol. It was at this point that Mr. Marrington suggested they not live together and that he was going to put in his notice to the landlord at the end of August. [ 16 ] Ms.

Dovauo said in cross examination that she was upset and drunk when she went into the washroom. She was hanging on to the vanity and trying to sit on the toilet when she fell. It defies logic that she somehow managed to fall face first into the toilet area if she was already in the process of sitting. She said after she got up, she went out and up the stairs for a cigarette and fell down the stairs on the way back in. So now it is unclear whether she says she got the bruises from the fight she had down at the library or from the fall in the bathroom or from the fall down stairs.

Perhaps they were caused by all of these. Perhaps it happened on Friday. Perhaps it happened on Saturday. She did not look to see if she had any bruises after these incidents. [ 17 ] She said she started drinking again on the Saturday morning. She glanced at her bruises and did not like what she saw. She stayed in and drank at home that day. She did not recall if he went out for a while or not. [ 18 ] On cross examination, Ms. Dovauo said she got up Sunday morning and told Mr. Marrington she was going for a walk. She did not have any money but she took some off the counter.

She went over to the Dirty Jersey because there is a beer and wine store at Bailey’s Pub. [ 19 ] On re-examination, Ms. Dovauo admitted that when she went in to recant her statement about Mr. Marrington hitting her and claiming that she struck herself on the toilet, she did not mention the fight at the library. She claimed if she said anything about the altercations the police would want to know who had done it and then she would just get hit harder. [ 20 ] Some months later when Ms.

Dovauo returned for her cross examination to be completed, she returned to the version of events that involved her falling on a toilet, and seeing her face the next day. [ 21 ] Ms. Dovauo persisted in her story that she called her daughter because she was angry with Mr. Marrington and told her daughter that he assaulted her because she knew her daughter did not like him. Incredibly, she said her daughter does not want her in any relationships. [ 22 ] Ms. Dovauo said it was easy to lie to her daughter because her daughter believes everything she says.

She said she had to lie to the police but had to make it seem like she was telling the truth. This is belied by her abominable job of lying on the witness stand. Her statement to the police, on the other hand, was credible. [ 23 ] On that occasion, she also claimed that she did not tell the truth to the police because she was not under oath. She said she did not know the camera was on when the police officer left the room. She does not recall the conversation she had with her daughter on camera while the officer was out of the room. The conversation is not what matters. It was her demeanour.

She did not present at all on video as she did in court. On video, she was believable. [ 24 ] On cross examination, on the second occasion, she said that she did tell Mr. Marrington she was going for a walk to pick up a couple of beer. On the first occasion in cross examination, she had said she did not tell him she was going to get beer because he would have told her she could not. [ 25 ] During cross examination, Ms.

Dovauo cooperated entirely by painting herself to be an angry alcoholic for whom treatment has not been beneficial and whose daughter is so possessive of her mother that she takes an instant dislike for any relationship Ms. Dovauo finds herself in. She tried to explain any the derogatory references she originally told the police Mr. Marrington had called her by saying “it’s just what people call me”. As a result, while he does not use those exact words, she takes him to be meaning those things. Her testimony lacked any ring of truth. [ 26 ] Mr. Marrington was at least as incredible as Ms. Dovauo. He said that Ms.

Dovauo came home around 4:00 p.m. on July 13 looking dishevelled. He said her face showed signs of swelling and you could tell that she had been drinking. He asked her what had happened although he was accustomed to this sort of thing happening in the past. She told him that she had been in an altercation and would not elaborate. [ 27 ] Mr. Marrington said he had been relaxing and having a couple of drinks and offered her one. She accepted and he poured her a drink. This is despite the fact that she came home drunk, dishevelled and having been in an altercation. [ 28 ] Mr.

Marrington testified that he decided this had culminated to the point that he felt it was best they separate. He told her he wished to move on with his life and did not want to be in this predicament anymore. He told her he was going to give notice to the landlord by August 1. This is in the context of her having come home drunk and having been in an altercation, and now he was plying her with alcohol. [ 29 ] He said Ms. Dovauo was visibly upset and he could tell she was hurt. However, he said that nothing else happened.

They had a couple of drinks, watched a movie and went to bed. [ 30 ] In the course of them watching this movie and having a couple of more drinks, he said Ms. Dovauo had numerous falls or it sounded like she had numerous falls. So to be clear, she is now falling down drunk, swollen from injuries from an altercation, and he is fed up with the circumstances but he is still offering her alcohol and drinking it with her. [ 31 ] Mr. Marrington testified that Ms. Dovauo came in after having a cigarette and he heard what sounded like a dramatic tumble.

He knew she fell into the closet, yet he did not get up to check on her despite her now serious state of intoxication.

[ 32 ] Mr. Marrington said Saturday was a mellow day and they sat around watching DVDs. He said there was an air of tension because he was adamant about his intentions of parting ways. [ 33 ] Mr. Marrington said that Sunday was typical. He made bacon and eggs. He said there was tension but aside from that it was just an average day. In the mid-afternoon, Ms. Dovauo said she wanted a couple of beer so she went for a walk and he went for a nap. [ 34 ] Mr. Marrington said after he was arrested he could not recall speaking to Ms. Dovauo because he was on terms not to talk to her.

When confronted with his record which showed that he had breached his no contact terms following the incident, he tried to explain that he thought the Crown meant immediately following when the police took him away. [ 35 ] Mr. Marrington was entirely unclear about the amount of alcohol he had on Friday the 13 th . He said he had a mickey of vodka and it was gone by the end of the night. He did not drink it all to himself. He guesstimated he would have had six or seven drinks. At least a couple of those were before Ms. Dovauo returned home. [ 36 ] When Mr.

Marrington was queried on cross examination about the level of intoxication Ms. Dovauo had reached by the time she returned home on the Friday, he said she was visibly affected. He said she had had enough. He also offered gratuitously that she was intoxicated “but not a psychosis type of obliterated”. [ 37 ] When confronted on cross examination about plying Ms. Dovauo with more alcohol, he said he gave her a drink because he had some bad news for her. He agreed he was not entirely sober, having had two drinks. When further pressed on cross examination, he agreed that Ms.

Dovauo was visibly affected by the alcohol she had already consumed. He agreed that she was already beyond the state where she was going to relax from the alcohol but he did not consider whether she was in a state where she would not understand what he was going to tell her. He agreed on cross examination that he gave her a drink to break it to her that her drinking had become too much and so he was breaking up with her. [ 38 ] When it was put to Mr. Marrington on cross examination that they only stopped drinking when there was no more alcohol left, he insisted they had stopped before.

He said he was running out of what he had and did not want her to drink all the liquor he had left. He wanted to be able to drink more socially later. He agreed that he did not stop her out of concern for her. [ 39 ] In cross examination, there followed a ludicrous exchange where Mr. Marrington said that he drinks socially, which means to the point of not getting drunk, rather than with society. He agreed Ms. Dovauo was agitated and was an alcoholic, but rather than waiting for her to sober up, he gave her more alcohol.

He agreed he then began social drinking alone and had bought a mickey to drink by himself to do so. He cut Ms. Dovauo off because he would not have enough for himself. [ 40 ] In cross examination, Crown suggested to Mr. Marrington that he had an alcohol problem. He denied it. He initially denied that he had a criminal record involving alcohol.

Then he admitted that in 1982 he had a conviction for driving while .08; had a conviction in 1995 for refusing to provide a breath sample; had a conviction in 1990 for driving while impaired; had a conviction for driving while intoxicated in 2001; and had a criminal conviction in 2010 for driving while intoxicated. When he was convicted of an assault related charge in August, 2010, he was also convicted of a breach of a no alcohol term he had been under at the time. There were also two convictions in 2011 which were also both related to alcohol.

He agreed that he had signed the terms to be released from jail but could not stop himself from drinking. He was then placed on probation with a term that he not drink which led to the two convictions in 2011 for breaching the no alcohol term. The record most certainly indicates that Mr. Marrington has a significant alcohol problem. More importantly, he has no compunctions about lying about his criminal record. [ 41 ] Mr. Marrington said that in cross examination that he did not drink on Saturday. He said he remembered the weekend fairly well and that they just sat around watching DVDs.

He said it was not unusual for him to not drink. He said that he remembered quite clearly that he was not drinking Saturday or Sunday at all. They talked on Saturday about their futures and him wanting them to go their separate ways. He told Ms. Dovauo his reasons for wanting to move on. She remembered from the night before which seemed obvious to him when they were talking on the Saturday. She was hurt and crying. Mr. Marrington said implausibly that he told her he wanted to keep his job with the newspaper and did not want her coming home drunk.

Whether the two of them stayed together or she moved on, it had nothing to do with whether he kept his job at the newspaper. This was a purely gratuitous insertion. He twice mentioned in cross examination that he wanted to keep his job at the Kamloops Daily News. It is well known in this community that Kamloops Daily News had closed its doors at the time of this cross examination. [ 42 ] Mr. Marrington insisted that they simply hung out together on the weekend and that neither was drinking. Ms. Dovauo had testified she started drinking from the time she got up on Saturday.

On further cross examination, he agreed that Ms. Dovauo was pretty close to a day-to-day drinker but he did not recall her drinking anything on Saturday. He said she did not have anything available to drink and he did not have any alcohol in the house that he was aware of. He did not recall her going out on Saturday.

When pressed further on cross examination, he conceded that she drank pretty close to every day; it was unusual that she did not drink that day; she had lots of reasons that she would drink; she is an alcoholic; he had just broken up with her; she was unhappy about that; and she did not turn to alcohol. [ 43 ] I find that Mr. Marrington will say pretty much whatever comes to him in the moment to cast himself in the best light without any regard to the truth. [ 44 ] While I do not believe Mr. Marrington’s evidence or Ms. Dovauo’s evidence at trial, I am satisfied that the statement Ms.

Dovauo gave to the police was credible, reliable and true. Ms. Dovauo told Constable Milne that David Marrington assaulted her. She said they began drinking Friday night and kept drinking through to Saturday. Mr. Marrington got vocal and then started going after her face and hitting her. He just snapped, grabbed her face and squished her. He hit her with his fist, smacked her around “a little bit”. He called her stupid and called her foul names. Despite her scattered and disjointed way of delivering evidence, this is the only version of events that was true and I accept it.

I am satisfied the Crown has proved beyond a reasonable doubt that David Marrington assaulted Shirley Dovauo and I convict him of that charge.

______________________ S.D. Frame Provincial Court Judge