R. v. Wheeler, 2013 NLCA 36

Date: 201305 17 Docket: 11/90 Citation: R. v. Wheeler , 2013 NLCA 36 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: COLIN WHEELER APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, White and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, Corner Brook Appeal heard: January 7, 2013 Judgment rendered: May 17, 2013 Reasons for Judgment by White J.A. Concurred in by Rowe and Harrington JJ.A.

Counsel for the Appellant: Keir O’Flaherty Counsel for the Respondent: Robin Fowler White J.A.: [ 1 ] Colin Wheeler was convicted of aggravated assault and assault with a weapon. He appeals those convictions, arguing that the trial judge should have doubted the testimony of the Crown’s witnesses. He seeks a new trial. BACKGROUND [ 2 ] Early one autumn evening, the police were called to 74 Beothuck Crescent in Corner Brook. Someone had been stabbed. When they arrived, they found Irma Coric crying and her boyfriend Kyle Hynes bleeding from his face.

The critical factual question at trial was how he came to be injured.

[3] The train of events that led to the stabbing began the night before, when Ms. Coric told Mr. Hynes she was going out “for acoffee”. Actually, she went to a bar. Mr. Wheeler was there with Deanna Murrin, whom he was dating at the time. At some point in theevening they moved to a house party in Benoit’s Cove. Ms. Coric stole a forty-ounce bottle of whisky, and they stayed up late drinking. [4] In the morning, Ms. Coric was afraid of returning home to face her boyfriend alone, so she took Mr. Wheeler, Ms. Murrin, andthe stolen whisky with her.

She crawled through a window to get in, and then admitted her companions. [5] As Ms. Coric had predicted, Mr. Hynes was upset with her. He and Ms. Coric began to argue, and Ms. Murrin left the house. The Crown’s Case [6] Mr. Hynes and Ms. Coric testified that they were arguing in the bedroom upstairs when they heard Mr. Wheeler come up andopen the door. He had two knives. He reached around Ms. Coric and struck at Mr. Hynes, cutting his cheek and leaving bloodeverywhere. Ms. Coric ran down the stairs and fled to her neighbour’s house. [7] Mr. Wheeler punched Mr.

Hynes in the eye, knocked him down, and tried to stab him. Fortunately, Mr. Hynes was able tokick back and escape. He reached his neighbour’s house and called the police. The Defence Case [8] By contrast, Mr. Wheeler testified that the argument between Mr. Hynes and Ms. Coric became more and more violent. Mr.Wheeler decided to go home and called his father to ask for a ride. Then, at around 6:30 p.m., he heard a loud crash from upstairs. Mr.Hynes screamed, “You fucking bitch, I am going to cut your throat.” [9] Mr. Wheeler inferred that Mr. Hynes had a knife and was going to attack Ms. Coric.

He grabbed a knife and ran up the stairs. When he opened the bedroom door, he saw Mr. Hynes sitting on a bed, holding Ms. Coric by the hair and pointing a knife at her throat. They both had blood all over their faces. [10] Mr. Wheeler told Mr. Hynes to let Ms. Coric go. Mr. Hynes refused. They brandished their knives, but Mr. Wheeler managedto avert a fight by grabbing Mr. Hynes’ knife out of his hands. He threw the knife away, and Ms. Coric escaped. [11] After Ms. Coric fled, Mr. Hynes kicked Mr. Wheeler several times. He fell on top of Mr. Hynes, cutting his face accidentally. He apologized and asked Mr.

Hynes not to call the police. Mr. Hynes agreed, provided that Mr. Wheeler left immediately. Mr. Wheelerleft, waited briefly for his father, and eventually called a cab from a nearby restaurant. The Trial Decision [12] The trial judge said that Mr. Wheeler’s story was “nonsensical” and inconsistent with the physical evidence. [13] He was unimpressed with Ms. Coric’s evidence. She had attempted to mislead the court on collateral matters and was heavilyintoxicated at the time of the offence. He did not think she framed Mr. Wheeler, though she held a grudge against his father.

In light ofall this, he decided not to accept her evidence without corroboration. [14] The trial judge had no such difficulties with Mr. Hynes’ evidence, which he found credible. Mr. Hynes’ testimony, thecorroboration it provided to portions of Ms. Coric’s evidence, plus the physical evidence and Mr. Wheeler’s rapid flight from the scene,formed the basis for three findings of fact at paragraph 104: 1. When Mr. Wheeler went upstairs to the bedroom in which Ms. Coric and Mr. Hynes were located he had two knives in his possession; 2. Mr. Wheeler did not intervene to protect Ms. Coric; and 3. Mr.

Wheeler purposely struck Mr. Hynes in the face with the knife causing a significant cut to Mr. Hynes’ face and then punched Mr.Hynes over his eye causing an injury there as well. [15] These findings made out the offences of assault, assault with a weapon, and aggravated assault. The trial judge acquitted Mr.Wheeler of uttering a threat and stayed the assault charge because of the rule against multiple convictions. ISSUES [16] The primary issue is whether the trial judge ought to have had a reasonable doubt arising from the possibility that Mr. Hynesand Ms. Coric colluded to falsify their evidence. [17] Mr.

Wheeler also argues that Mr. Hynes’ poor memory and courtroom behaviour should have left the trial judge with anunfavorable assessment of Mr. Hynes’ credibility, which in turn should have given rise to a reasonable doubt about whether Mr. Wheelerwas guilty. STANDARD OF REVIEW [18] Mr. Wheeler does not argue that the trial judge erred in law or that he misapprehended the evidence. Rather, he argues that thetrial judge came to an unreasonable verdict under subparagraph 686(1)(a)(i). [19] The basic principles relating to this argument were established in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 andR. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. The appeal court must not usurp the role of the trier of fact. [20] Unreasonable verdict arguments usually focus on whether the court of appeal should enter an acquittal because the evidence at

trial could not support a conviction: see Biniaris and Yebes. Mr. Wheeler does not advance that argument: he accepts that the recordcould support a conviction. Instead, he argues that this Court should order a new trial because the trial judge reached his decision by anunreasonable path of reasoning. [21] This type of argument stems from R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 and was developed in R. v. Sinclair, 2011SCC 40, [2011] 3 S.C.R. 3 and R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746.

The appropriate test was succinctly stated by DeschampsJ. in R.P.: [9] … The appellate court may … find a verdict unreasonable if the trial judge has drawn an inference or made a finding of factessential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding,or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair,2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19–21; R. v.

Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [22] Before applying this test, three cautions are appropriate.

First, Beaudry does not allow an appeal court to circumvent the highlevel of deference established by Yebes and Biniaris. It identified types of situations that can give rise to an unreasonable verdict; it isnot a back door for getting around the high level of appellate deference outlined in Yebes and Biniaris: see R. v. MacIsaac, 2013 NLCA26 at para. 15. [23] Secondly, in applying Beaudry an appellate court must keep in mind the limitations of appellate review of matters ofcredibility.

The trial judge’s perceptions may have been shaped by many factors that are not apparent from the record, and a conclusionthat may seem unreasonable from a sterile transcript may have been cogent after a live trial. [24] Thirdly, a Beaudry argument focuses on whether the trial judge’s findings and inferences could be supported by the evidencethat the trial judge accepted. It does not allow the appellant to rehabilitate evidence that the trial judge rejected. In this case, the trialjudge rejected Mr. Wheeler’s own version of events outright, and so Mr. Wheeler cannot rely on it to bolster his theory of collusion.

ANALYSIS Collusion and the Onus of Proof [25] Mr. Wheeler argued that once the possibility of collusion was raised, the Crown bore the burden of proving beyond areasonable doubt that its witnesses did not collude. This suggestion is untenable. [26] The Crown must prove every element of the offence. That is its only burden. [27] The absence of collusion is not an element of any offence. Collusion by Crown witnesses is not a defence. The Crown does notneed to prove beyond a reasonable doubt that its witnesses did not collude.

Rather, it only needs to prove the elements of the offence,beyond a reasonable doubt, to obtain a conviction. [28] The Crown may even secure convictions when its witnesses did collude. It might have other strong evidence that adequatelysupports a verdict of guilty.

The collusion might only affect some parts of its witnesses’ evidence, and other parts might be credible. (That said, collusion ordinarily casts a shadow over the witness’s overall testimony.) [29] Where the circumstances suggest there may have been collusion (as opposed to a bald allegation that there was or might havebeen), a reasonable doubt may well be raised about whether an accused committed the offence. In such circumstances, it may bepractically necessary for the Crown to rebut an allegation of collusion. [30] The trial judge might have formed the view that Mr. Hynes and Ms.

Coric suppressed evidence of domestic violence orpossession of marijuana and may have colluded to do so. But those were peripheral matters. He could nevertheless have accepted theirtestimony—corroborated by the physical evidence—that Mr. Wheeler entered the room with a knife and attacked an unarmed man, andthat he did so neither in self defence nor to protect Ms. Coric. If so, it was open to him to convict. [31] In any case, the trial judge concluded that the Crown witnesses did not collude. Collusion and Similar Fact Evidence [32] Mr.

Wheeler invited the court to consider the approach to collusion in cases involving similar fact evidence, such as R. v. Burke, (SCC), [1996] 1 S.C.R. 474. These cases are of limited assistance. Collusion comes in two kinds—unconsciouscontamination and deliberate fabrication—and both are more likely to affect similar fact evidence than eyewitness corroboration. [33] Unconscious contamination can happen to honest witnesses if they discuss their testimony in advance. People are suggestible.

Such unconscious contamination is more likely to affect minor details than major events, and so it assumes a central role when theverdict turns on the details of testimony rather than the major events. [34] For example, in R. v. Holden (2001), (ON CA), 56 O.R. (3d) 119 (C.A.) two children were kidnapped by astranger, and one was sexually assaulted. They identified their captor by the details of his appearance, which they had discussed formany hours after the events.

Austin J.A. allowed the appeal: their identification was unreliable because the details they relied on werelikely to have been contaminated in their discussions.

[ 35 ] Unconscious contamination is a particular concern in similar fact cases because minor details often constitute the striking similarity or peculiar calling card that gives similar fact evidence its probative value. [ 36 ] In eyewitness corroboration, on the other hand, the focus is usually on the major events. This case exemplifies the difference. Unconscious contamination was not an issue: the Crown witnesses contradicted each other on many of the details surrounding the offences.

It was only on the events immediately relating to the assault that they agreed. [ 37 ] Deliberate fabrication occurs when a witness lies under oath about the events of a case. It requires a witness of striking dishonesty. In this case, the only possible eyewitnesses were Ms. Coric and Mr. Hynes. If one of them fabricated evidence, eyewitness corroboration would be impossible unless the other was also willing to lie. [ 38 ] But almost anyone can fabricate similar fact evidence. All it takes is one person who knows the details of the claim and who is unscrupulous and malicious enough to lie: see for example Burke .

Similar facts could happen at any place and time. Because similar fact evidence is easy to fabricate, the courts must be especially alert to the possibility of fabrication. [ 39 ] Instead of examining the possibility of collusion through the lens of the similar fact jurisprudence, I find it more helpful to examine the evidence to determine whether it was incompatible with or contradicted the trial judge’s conclusions. Opportunity to Collude [ 40 ] Mr. Wheeler devoted much energy towards establishing that the Crown witnesses had an opportunity to collude on the evening of the offence.

He did not explain exactly why this opportunity matters. The Crown witnesses were, after all, a couple at the time of the offences. They had months to collude and get their story straight. [ 41 ] Mr. Wheeler argued that the Crown witnesses colluded to fabricate the story about the unprovoked assault. However, the Crown witnesses made statements to the police on the evening of the assault. Large portions of those statements were entered into evidence, and they could be used as prior consistent statements to rebut the defence’s claim of fabrication.

It is in reply to this rebuttal that the defence argued that the Crown witnesses could have colluded before they made these statements. [ 42 ] The trial judge had to discount the value of the prior consistent statements because the Crown witnesses had two hours together in which to discuss their evidence. They could have worked out a story in the presence of police witnesses. Perhaps they could not collude in the most open and literal sense—“Irma, how about we pin this whole thing on Colin?”—but they could tell and retell their stories until each was sure of what the other would say.

Such behaviour would be natural enough after a traumatic event and might not be noted by the police officers (who did not testify in any event). [ 43 ] None of this evidence or analysis contradicts or is incompatible with the trial judge’s reasoning process. The prior consistent statements are at most a rebuttal, and the trial judge does not seem to have placed great weight on them even for that limited purpose. He accepted the Crown’s theory primarily (1) because he believed Mr. Hynes, (2) because he thought it was most consistent with the physical evidence, and (3) because Mr. Wheeler fled from the scene.

Inconsistencies and Animus [ 44 ] Mr. Wheeler suggests that the Crown evidence was undermined by a few inconsistencies and one ill-considered remark: 1 The Crown witnesses testified that Mr. Wheeler drank most of the stolen forty-ounce bottle of liquor starting at around 3:00 pm. But he was caught on film at 7:12 pm by a video camera outside a nearby restaurant, and the film shows him walking rather steadily. 2 The Crown witnesses’ testimony was not perfectly consistent with their initial statements. At first they stated that Mr. Wheeler was inside the house when the police arrived.

At trial they said the opposite. 3 Mr. Hynes forgot many details of the evening of the offence. 4 The trial judge said that Mr. Hynes had no animus toward Mr. Wheeler, but at trial, Mr. Hynes said to Mr. Wheeler, “And you remembers that, hey Colin”. 5 The trial judge said that the police did not find blood in the living room, but they found the bloody knives on a chair in the living room. [ 45 ] Some of these defence suggestions might raise a reasonable doubt, but they did not compel one. They do not contradict and are not incompatible with the trial judge’s conclusions.

They are all peripheral—none of them goes to any of the elements of the offence or the possible defences: 1 Perhaps Mr. Wheeler had an exceptional tolerance for alcohol. Perhaps the Crown witnesses were mistaken about how much he drank; perhaps they exaggerated it innocently and contaminated each other’s testimony. Mr. Wheeler was convicted of assault, not drunkenness. 2 The inconsistency about whether Mr. Wheeler was inside the house suggests innocent contamination. The Crown witnesses lived together as a couple, even if they have since split up, and so some contamination on collateral points is to be expected.

It need not vitiate the witnesses’ testimony on the essential points. 3 Mr. Hynes’s imperfect memory and his frankness about it are consistent with the trial judge’s impression that he was honest. It does not suggest he forgot who attacked whom. 4 The courtroom demeanour of a witness is perhaps the issue on which an appellate court is least able to criticize a trial judge. From the sterile transcript, Mr. Hynes’ single remark does not seem to display any particular animus.

5 The presence of bloodstains on the knives, but nowhere else in the living room, supports the trial judge’s theory that the knives were left by Mr. Wheeler. If Mr. Hynes had left them, his bleeding face would probably have left more stains. Confirmatory Evidence [ 46 ] The law of confirmatory evidence is a feature of charges in jury trials. When a witness is particularly unsavoury, the trial judge must warn jurors about the danger of relying on that witness’s uncorroborated testimony. The trial judge will then review any confirmatory evidence. See generally R. v.

Khela , 2009 SCC 4 , [2009] 1 S.C.R. 104. [ 47 ] Crucially, however, the jury is not bound to follow the trial judge’s warning. The trier of fact is entitled to accept the uncorroborated testimony of an unsavoury witness and convict based on it. See for example R. v. Ponce , 2012 MBCA 87 ; R. v. MacDonald (D.S.) , 2008 ONCA 778 , 242 O.A.C. 244; R. v. Piec , 2007 MBCA 138 . [ 48 ] In this case, the trial judge concluded that Ms. Coric was personally disreputable, malicious towards Mr. Wheeler, and dishonest in parts of her testimony.

He decided only to accept her evidence to the extent that it was corroborated. [ 49 ] Having chosen not to accept Ms. Coric’s evidence without confirmatory evidence, the trial judge could not rely on her evidence unless confirmatory evidence was available, which there was. [ 50 ] Most importantly, Mr. Hynes could and did confirm Ms. Coric’s evidence. Mr. Hynes was not a perfect witness: he had a criminal record, and his evidence may have been contaminated to some extent by Ms. Coric’s. Nevertheless, the trial judge was entitled to accept his evidence about the essential facts. [ 51 ] The testimony of Mr.

Hynes alone would have been enough to ground the conviction, as Mr. Hynes testified to all the elements of the offence. But the physical evidence, the injuries, the fingerprints, and the knives, corroborated his evidence and Ms. Coric’s. So did Mr. Wheeler’s decision to flee the house and abandon his valuable tattoo kit. CONCLUSION [ 52 ] The evidence forms an adequate basis for the trial judge to “reasonably” make the findings of fact that he did, which findings make out the elements of the convictions that he entered.

There is no basis for saying the trial judge could not have reached the verdict he did on the strength of the existing record. The verdict is not contradicted by any evidence accepted and relied on by the trial judge in support of the inferences or findings he made nor is it incompatible with any evidence that has not otherwise been contradicted or rejected by the trial judge. The trier of fact is entitled to believe imperfect witnesses, which he did here.

That is no basis for an appellate court to intervene, and set aside his findings of fact and the convictions grounded on them. [ 53 ] I would dismiss the appeal. ____________________________ C. W. White J.A. I Concur: _____________________________ M. H. Rowe J.A. I Concur: _____________________________ M. F. Harrington J.A.