R. v. Nicholson, 2019 NLSC 152

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Nicholson , 2019 NLSC 152 Date : August 13, 2019 Docket : 201801G6149 Her Majesty The Queen v. Rocky Jed Nicholson Restriction on Publication: No person shall publish in any document or broadcast or transmit in any way any evidence, submissions and/or instructions to the judge that form part of the trial of Rocky Jed Nicholson, until such time as the jury for the trial of Paul Hanlon has been sequestered or his matter has been concluded. Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 17 - 21, 2019

Summary: The Accused was convicted of the charges of break and enter and committing an indictable offence therein, aggravated assault, assault with a weapon and disguise with intent. The Court applied section 21(2) of the Criminal Code , finding that the Accused formed an intention with another person to carry out an unlawful purpose and assist each other in that purpose. Other indictable offences committed by the Accused and/or that other person were probable consequences of that common unlawful purpose. As a result, the Accused was found guilty. Appearances:

Richard L. Deveau Appearing on behalf of the Crown John A. Hartery Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.); R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. K.P., 2019NLCA 37; R. v. Y. (C.L.), 2008 SCC 2; R. v. C.Y., 2019 NSSC 124; R. v. Jacquot, 2010 NSPC 13; R. v. G. (M.) (1994), 93 C.C.C. (3d)(Ont. C.A.); R. v. Simpson, (SCC), [1988] 1 S.C.R. 3; R. v. Simon, 2010 ONCA 754; leave to appeal refused (2011), 265C.C.C. (3d) ix (C.C.C.); R. v.

Gauthier, 2013 SCC 32 , [2013] 2 S.C.R. 403; R. v. Rice, 1902 CarswellOnt 302, 1 O.W.R. 394(C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] Rocky Jed Nicholson (the “Accused”) stands charged with five counts under the Criminal Code, R.S.C. 1985, c. C-46(Criminal Code). The Indictment filed on September 5, 2018 alleges that Mr.

Nicholson did, on September 3, 2017 at or near Victoria,Newfoundland and Labrador, commit the following offences: Count No. 1: That he did break and enter into a certain place to wit: a dwelling house situate at 346 Neck Road, Victoria and committherein an indictable offence contrary to section 348(1)(

b) of the Criminal Code; Count No. 2: That he did wound, maim, disfigure or endanger the life of Justin Traverse thereby committing aggravated assault contraryto section 268(1) of the Criminal Code; Count No. 3: That he did, in committing an assault against Mitchell Drodge, use a weapon to wit: a baseball bat contrary to section267(

a) of the Criminal Code; Count No. 4: That he did, with intent to commit an indictable offence, have his face masked contrary to section 351(2) of the CriminalCode; Count No. 5: That he did carry a weapon, to wit: a knife, for a purpose dangerous to the public peace contrary to section 88(1) of theCriminal Code. [2] At the conclusion of trial, the Crown indicated it would not be seeking a conviction on Count No. 5 as the evidence did notestablish beyond a reasonable doubt that the Accused committed this offence.

I agree that the evidence did not establish beyond areasonable doubt who had possession of or used a knife. As a result, an acquittal is entered on that count. evidence Crown Evidence [3] The Crown alleges that Mr. Nicholson arrived at Apartment #6, 346 Neck Road, Victoria (the “Property”) on the evening ofSeptember 3, 2017, with Paul Hanlon, and a third person, Jordan Aubie, and committed the offences with which he is now charged. Mr.Hanlon was also charged with similar offences but has elected to be tried by judge and jury.

As his trial has not yet commenced, theevidence, submissions, and/or instructions to the judge relating to the trial of Mr. Nicholson is subject to a publication ban noted at thebeginning of this decision. [4] Both persons present in the Property prior to the arrival of Mr. Hanlon, Mr. Nicholson and Mr. Augie testified at trial. Thesole person residing full-time at the Property at the time was Justin Traverse, a 34-year old male. The Property is the right hand portionof a duplex. It is an apartment that is quite small, consisting of two bedrooms, a bathroom and an open space living room/kitchen area.

Mr. Traverse had moved in approximately one month prior to the incident. [ 5 ] The second person in the apartment at the time of the incident was Mitchell Drodge, who was a friend of Mr. Traverse at the time. Mr. Drodge is currently 26 years old and lives in the Salmon Cove area. [ 6 ] While neither of these witnesses could be described as hostile, neither of them appeared anxious to be involved as complainants. In fact, Mr. Drodge started his testimony by letting the Court know that he had not volunteered to be here – he had to. [ 7 ] Both Mr. Drodge and Mr. Traverse knew Paul Hanlon before the incident. Mr.

Traverse worked with Mr. Hanlon years ago in Alberta and had some interaction with him in the days prior to the event, as will be described in more detail below. He had met Mr. Nicholson on a prior occasion when Mr. Nicholson was with Mr. Hanlon. Mr. Drodge testified that he had known Paul Hanlon, Mr. Nicholson and Jordan Aubie prior to the incident. He said he knew Paul Hanlon for about four or five years prior to the incident, having helped him build a garage and fence a few years back. He also knew Mr. Nicholson through Mr. Hanlon. [ 8 ] Mr. Traverse described his involvement with Mr.

Hanlon leading up to the incident. He said that on the Wednesday prior to September 3, 2017, Mr. Hanlon had knocked on his door at approximately 1:00 p.m. When Mr. Traverse opened the door to let Mr. Hanlon in, both Mr. Hanlon and Mr. Aubie were there. Mr. Hanlon asked Mr. Traverse if he knew anything about cocaine or “stuff missing”. Mr. Traverse testified that Mr. Hanlon said that if Mr. Traverse had no involvement in it, he apologized for that, but if he did, “I’ll be back for it”. Mr. Traverse also testified as to a text message he had received from Mr. Hanlon just days prior to September 3, 2017.

The message said, “out of my hands. tick tock….ur done!” [ 9 ] Mr. Drodge also received text messages from Mr. Hanlon in the days leading up to the incident, including one that said, “u r all geting a beating get ready. im ready. the four junkies.”; “c u all real soon!”; and “see u soon or they will, thank god for car cam! Las warning u should leave. out of my hands”; “and yes Im done”; as well as “I c u with ur sister mitch hope shes not with u when they find u!” [ 10 ] Both Mr. Drodge and Mr.

Traverse testified that on the evening of September 3, 2017, they had just finished eating dinner and had begun watching a television show. Mr. Traverse said that the show was called “Storage Wars”. He was lying on the couch and Mr. Drodge was sitting in a chair. [ 11 ] Both testified that the door to the apartment leading into the open living/dining room area then flew open and wood shattered from the frame. Two men wearing masks and carrying bats entered. Mr. Traverse described the two men as being stocky and wearing a lot of clothes while Mr. Drodge described the men as being dressed all in black.

When presented with a statement he had given the RCMP indicating that three individuals had entered wearing masks, gloves and dressed all in black, Mr. Drodge said that was a mistake as only two individuals came inside the Property. He noted that this statement was corrected later in his police interview. [ 12 ] Both Mr. Traverse and Mr. Drodge said that the area would have been fairly dark at that time of night. Mr. Drodge testified that there were one or two lights on the wall. Mr.

Traverse also testified that the porch light at the front of the house would likely not have been on, as he was not expecting company. As well, he keeps the blinds in the living room window closed, while the entertainment unit in front of that window was almost the full size of the window. As a result, there would have little to no light entering from outside. Further, the television was quite loud so they would not have seen or heard the assailants before they entered. [ 13 ] While only two men entered the premises, both Mr. Traverse and Mr.

Drodge testified that a third man, Jordan Aubie, was also present that night. He did not enter the premises but stayed on the patio, looking in through the front door. [ 14 ] Both Mr. Drodge and Mr. Traverse testified that events happened extremely quickly. Both men who entered immediately started swinging the bats at Mr. Traverse and Mr. Drodge. Mr. Traverse and Mr. Drodge both received hits from the bats several times. [ 15 ] Mr. Drodge’s recollection of the assault was not extremely detailed. He described the events as being a blur.

He estimated he was hit with the bat ten or more times on his back, left and right arm. He said that after some time, he pushed or wrestled with one of the persons who had a bat and was able to retrieve a bat when it fell to the floor. When he gained his composure, he could see that the person in front of him was Mr. Nicholson as his mask had either come off or fallen off. He could not be sure which bat he had grabbed. He said he knew at some point he had swung the bat and hit someone with it, but he was not sure who he may have struck. He was also aware that Mr. Nicholson was injured and thought Mr.

Nicholson may have hit his back on the corner peninsula of the counter while they were wrestling. [ 16 ] Mr. Drodge also said he was struck in the shin by what appeared to have been a knife. That injury required four stitches. However, he could not say who struck him or what may have happened to the knife. He also said that he received a cut to the back of his head. [ 17 ] Mr. Drodge thought he may have attempted to poke Mr. Aubie with the end of his bat. He also recalled telling Mr. Nicholson and Mr. Aubie to leave. He said Mr. Nicholson then left. [ 18 ] Mr.

Drodge said he proceeded into the bathroom where Justin Traverse was wrestling with Paul Hanlon over the side of the tub. He said both Mr. Traverse and Mr. Hanlon were bleeding. He could not remember if he swung the bat when he went into the bathroom as he was full of adrenaline. He says Paul Hanlon then left the house. [ 19 ] Mr. Traverse was more detailed in his recollection of events. He estimated that Mr. Drodge took approximately ten to fifteen hits from both assailants with the bats while he was on the floor. Mr. Traverse had a different recollection from Mr. Drodge as to how Mr. Drodge got off the floor.

Mr. Traverse said it was he who managed to get one of the bats and “gave Mr. Nicholson a crack”, getting him off Mr. Drodge. Mr. Traverse said that he believes Mr. Nicholson took off his own mask as he appeared to be injured. [ 20 ] Mr. Traverse said that when he made the first crack at Mr. Nicholson, Mr. Traverse felt a stab in his leg and a cut on his ear. At that point in time, Mr. Nicholson was on his knees trying to get his mask off. He said he recalled seeing a wooden handled steak

knife, and believes it came out of Mr. Hanlon’s pocket. However, he could not be certain. [ 21 ] Mr. Traverse said that after Mr. Nicholson took off his mask and got up, it appeared he had hurt his back on the counter between the living room and kitchen. At that point in time, Mr. Drodge was in the corner with a bat. [ 22 ] Mr. Traverse then entered into a struggle with the other assailant who was still masked. Both men ended up wrestling over one of the bats in the bathroom, eventually struggling over the bathtub. Mr.

Traverse said he had the masked assailant in a headlock when that assailant took off his own mask. He said it was then that he recognized Mr. Paul Hanlon as the second assailant. While he was fighting with Mr. Hanlon in the bathroom, Mr. Traverse says he called out to Mr. Nicholson to get Paul Hanlon out of the house. Mr. Traverse said that Mr. Nicholson took Mr. Hanlon by the arm from the bathroom out through the front door. Mr. Traverse said that he then called the police and his mother. [ 23 ] With respect to his injuries, in addition to the cut from the knife, Mr.

Traverse said he suffered injuries to his leg, thigh and ear. [ 24 ] When questioned regarding the presence of the bats, both Mr. Drodge and Mr. Traverse were adamant that there had been no bats or weapons in the home before the assailants entered. As noted above, Mr. Traverse testified that he had lived in the apartment on his own. While he had children, they had never been at his home as he did not exercise his access time there. Further, his children were not involved in baseball or t-ball and did not own bats themselves. [ 25 ] Mr. Drodge identified the bats that had been entered into evidence.

He could not recall which of the two bats he had picked up from the floor during the struggle but was confident that it was an aluminum bat that he was struck with as he could hear and feel it. Mr. Traverse described one bat as being a silver bat and the other bat as being a shorter bat. [ 26 ] With respect to the masks, Mr. Drodge identified the masks that had been entered into evidence as the masks that had been worn by the assailants. He described one mask as a green mask with yellow teeth and the other as a “Scream mask” (i.e. from the movie titled Scream), being a mask with a white face. [ 27 ] Mr.

Traverse described the masks as full-faced masks resembling Halloween masks as opposed to ski masks. He said he could not be 100% sure, but he thought one mask was green. He knew that there was no side vision in either mask, describing them as rubber masks that you haul down over your head. However, he said he did not have much time to size up the masks given how quickly everything happened. Mr. Traverse was adamant that there had been no masks in the house before the incident. [ 28 ] In describing how frantic the incident was, Mr.

Traverse said the furniture had been knocked over as they had all been wrestling around the living room and slipping and sliding on blood on the floor. Mr. Drodge did not specifically testify as to the state of the apartment but said that he and Mr. Traverse had left everything as it was for evidence purposes. They did not tidy up at all. [ 29 ] The evidence of Mr. Traverse differed from that of Mr. Drodge on that point. When referred to photographs taken by the police upon their arrival at the scene, Mr.

Traverse said that the couch had been placed back upright before the police arrived and he had also returned the coffee table to its upright position. Mr. Traverse testified that he had put the couch and coffee table back upright so he could rest his leg on the coffee table. He pointed to a spot of blood on the coffee table that had come from his injured knee. [ 30 ] Mr. Traverse was also able to describe the debris that was on the floor in the police photographs, indicating that some debris would have come from an overturned bowl of chips that had been on the coffee table.

It was also clearly evident from the photographs that there was blood on the floor of the living room going into the kitchen. [ 31 ] Mr. Traverse’s mother arrived at the Property after Mr. Traverse called her, followed by the police. Mr. Traverse said his father and sister also pulled up to make sure he was okay. After the police arrived, Mr. Traverse and Mr. Drodge were transported to hospital. Mr. Traverse was released from hospital later that evening after receiving six stitches to his ear and seven or eight to his leg.

Before leaving the hospital he gave a statement to police. [ 32 ] In addition to the two persons involved in the incident, the Crown tendered evidence from numerous RCMP officers. Constable Timothy Devries testified that he was working the night shift at the RCMP Harbour Grace Detachment on September 3, 2017.

Somewhere between 9:30 p.m. and 10:00 p.m., he received a phone call from a person identifying herself as the mother of Justin Traverse, advising that her son had been injured at the Property and required an ambulance. [ 33 ] Constable Devries said that he and Constable Douthwright then attended at the Property. When they arrived, Constable Devries noticed that the door had been busted open, with damage to the doorframe. There were spots of blood all over the floor.

Constable Douthwright also noticed a black mask on the ground near the entry steps. [ 34 ] Both constables proceeded through the entrance into the apartment where Mr. Traverse and Mr. Drodge were located. Constable Douthwright said that Mr. Traverse and Mr. Drodge told them that Mr. Nicholson and Mr. Hanlon, wearing masks and carrying bats, had entered the premises. During his testimony, Constable Devries said that Mr. Traverse told the officers that Paul Hanlon, Rocky Nicholson and Jordan Aubie had entered the premises masked and with two bats.

When questioned whether a third individual was involved, Constable Douthwright said he did not recall being told that but he knew there was a search on for a third party who may have been involved. To the best of his knowledge, he did not believe a third party was apprehended that night. [ 35 ] Shortly after entering the scene, Constable Devries received a telephone call from Corporal Clarke of the RCMP who advised that Mr. Hanlon and Mr. Nicholson were at the Carbonear General Hospital. Constable Devries left to go to the Carbonear General Hospital to further investigate and assist Corporal Clarke.

Constable Douthwright also ensured that an ambulance was dispatched for Mr. Traverse and Mr. Drodge. [ 36 ] Having determined that the residence should be secured, Constable Douthwright told the complainants not to touch anything. Despite this, he said that Mr. Traverse picked up one of the baseball bats, telling Constable Douthwright this was a bat that had been

used. Constable Douthwright took the bat from Mr. Traverse and placed it back to where he thought it had been on the couch. [ 37 ] Constable Douthwright then proceeded to take photographs of the interior and exterior of the apartment. These photos showed Mr. Traverse with a bloody ear, with blood proceeding from his ear to his mouth, as well a significant cut on his knee. Mr. Drodge also had a cut on his shin. [ 38 ] Constable Douthwright was also able to identify items at the scene.

There was one silver, aluminum baseball bat on the couch, as well as a smaller baseball bat between the chair and coffee table on the floor. Constable Douthwright also took photographs of masks located at the scene. There was one mask with white and green markings located near an interior door. The mask that had been located outside was black on the outside and white on the inside. The photographs show what appeared to be blood on the interior of the mask. [ 39 ] Prior to Mr. Traverse leaving in the ambulance, Constable Douthwright escorted Mr. Traverse back into the home to allow him to change his pants.

After the ambulance left, Constable Douthwright secured the area by taping it off and waited for an RCMP commissioner to arrive to guard the scene. Commissioner Skinner arrived at approximately 11:53 p.m. Constable Douthwright had also called the police dog service to search for any discarded weapon or evidence outside the home. However, nothing was located. [ 40 ] With respect to the mask that had been located outside, Constable Douthwright testified that he received instructions from his supervisor, Corporal Barker, to seize the mask.

He took the mask and maintained continuity of the evidence by bringing it back to Harbour Grace RCMP Headquarters. [ 41 ] Corporal Kelly Lee of the RCMP testified that she received a call from Corporal Barker on the night of September 3, 2017. Corporal Lee is a forensic identification specialist with the Eastern NL District. In that capacity, she receives calls from various detachments to attend crime scenes to gather physical evidence.

That evidence is handed over to the local detachment who coordinates with the RCMP forensics lab to which exhibits requiring analysis are sent. [ 42 ] Given the fluidity of the situation on the evening of September 3, 2017, Corporal Lee decided she would not attend at the scene that evening, but provided guidance to Corporal Barker on the gathering of evidence.

In particular, it was she who advised Corporal Barker that the mask that had been left outside should be seized to avoid it being destroyed by animals or weather as rain was approaching. [ 43 ] Further investigation occurred on the evening of September 3, 2017 at the Carbonear General Hospital. When Constable Devries arrived at the hospital to assist Corporal Clarke, Constable Wiseman of the RCMP was also present. Mr. Nicholson was in a bed in one of the outpatient rooms where Constable Wiseman arrested him. Mr. Hanlon was in the trauma room. As medical staff said Mr.

Hanlon would not be going anywhere because of his injuries, he was not immediately arrested. Once Mr. Hanlon was medically cleared, he was also arrested. [ 44 ] Constable Devries says he then went out to the parking lot to see if he could identify a vehicle in which the suspects may have arrived. He ran a check on a number of vehicle license plates, eventually noting that the license plate of a blue Pontiac Vibe was registered to a Wanda Nicholson, the wife of Mr. Nicholson. That vehicle was parked over the parking line and had its lights on.

Constable Devries called a towing service who brought the car to Harbour Grace RCMP Headquarters. [ 45 ] Once medical staff cleared Mr. Nicholson to leave the hospital, Constable Devries took him to the Harbour Grace holding cells. In the meantime, off duty Constables David Loder and Muhammed Ali Agha were called by Corporal Barker to assist with the investigation. They went to the hospital, where Constable Loder took statements from Mr. Drodge and Mr. Traverse. [ 46 ] Constable Agha then went back to the RCMP detachment.

He was the officer who obtained from Constable Douthwright the mask that he had seized outside the premises. It was bagged and tagged and then secured in the RCMP locker. [ 47 ] In the early morning hours of September 4, 2017, Constable Devries was involved with seizing Mr. Hanlon’s clothes from the hospital. He seized a black jacket and blue jeans. Constable Douthwright was also involved with the seizing of clothes, including those of Mr. Nicholson. The clothing items were turned over to Constable Agha who bagged and tagged them.

They were then placed in the RCMP locker. [ 48 ] After dealing with the exhibits, Constable Agha was advised by Constable Dyke that Mr. Nicholson wanted his glasses. Constable Agha went to see Mr. Nicholson in the holding cells where he asked for his glasses that were located in the cup holder of the vehicle that had been seized. During this conversation, Mr. Nicholson asked Constable Agha if he was Constable Loder. Mr.

Nicholson also asked Constable Agha why the vehicle had been seized as it was not even at the scene. [ 49 ] Corporal Lee arrived at the Harbour Grace RCMP detachment the morning of September 4, 2017 and met with Constables Loder and Agha who advised her that they had obtained informed consent from the owner of the apartment so there was no need to obtain a search warrant for the Property. After obtaining a brief sketch of what had transpired, Corporal Lee attended at the Property at approximately 11:28 a.m. Constable Davies of the RCMP came later to assist her.

When Corporal Lee arrived, the scene was cordoned off with crime scene tape and a civilian guard was present. [ 50 ] She proceeded to take photos of the exterior of the premises, noting that the crime scene area had been taped off across the duplex apartment to the right. [ 51 ] As she approached the Property, Corporal Lee took photos of the concrete pathway leading to steps that, in turn, lead up to a patio just outside the apartment.

Drops of dark reddish material, appearing to be blood, were evident on the concrete path, the steps and the patio. [ 52 ] Debris that appeared to be from the damaged doorframe was located near the main entrance door to the Property on the patio. As well, staining was evident on the aluminum entrance door and the middle straight plate. Corporal Lee took photos of the staining on the door and a mark on the door that resembled a footprint. She was not provided with any footwear impressions against which to

compare the mark on the door and therefore indicated she could not testify as an expert that it was a footprint that was on the door. She proceeded to place stickers on various locations where there was staining so that she could swab the area for DNA analysis. [ 53 ] After putting on protective gear, she moved into the premises.

Constable Davies did not enter but waited outside for Corporal Lee to pass any evidence to him so he could maintain the chain of custody. [ 54 ] Upon proceeding into the apartment, Corporal Lee stepped into a living room that contained one chair, a coffee table, a couch and a tall cabinet that blocked off the front of the living room window. In the living room, she noted two baseball bats, one located on the floor between the chair and coffee table and the other leaning against the side of the couch. She collected the bats and handed them to Constable Davies.

She also placed stain area stickers on the floor. [ 55 ] Corporal Lee took photographs of all areas, including the kitchen that was adjoining the living room. There was a crumpled up table cloth on the floor of the kitchen as well as staining on the floor and in the hallway. [ 56 ] She also took photographs of the two bedrooms. One bedroom did not have much furniture in it while the one on the opposite side of the hallway from the bathroom did.

She proceeded into the second bedroom, which contained furniture, and seized clothing that was located in the bedroom. [ 57 ] Corporal Lee noted the bathroom floor and bathtub had significant red staining, as did the bathroom wall. She identified these areas to obtain swabs. In total, she took nineteen swabs of various staining areas where she perceived there to be blood. [ 58 ] In addition to taking swabs and seizing the bats and clothes, Corporal Lee collected a mask that was located just outside the bedroom door opposite the bathroom.

She described the mask as being of a skeleton-type design. [ 59 ] She handed over all exhibits to Constable Davies, with the exception of the two bats, which she brought back with her to Clarenville to check for fingerprints. However, she was not able to find any usable impressions. The RCMP investigators in Harbour Grace then advised her that the lab had asked for the bats back for analysis and she returned them to the Harbour Grace custodian. [ 60 ] Constable Loder was the custodian in charge of storage of items that had been seized in relation to the investigation.

As items came back, he ensured that they were tagged and bagged and safely secured in the exhibit locker. He was also in charge of coordinating with the RCMP lab as to which exhibits would be sent out for analysis. He entered into evidence the following items that were actually sent off for analysis: 1. The black face mask that had been seized by Constable Douthwright. It was a full face mask that came down over the entire head and extended into the neck. It also had eye holes. The interior of the mask was white and cushioned. 2. Another mask that could be described as a skull mask.

This was the mask that was located between the bathroom and occupied bedroom. 3. An aluminum bat that was seized from the floor by the couch. 4. A t-ball aluminum bat that was located on the couch by the far wall. 5. A black XXXL button-up shirt that was seized from the Carbonear General Hospital. 6. A black leather jacket that was seized at the Carbonear General Hospital.

This was obtained by a nurse who advised the RCMP that it had been Paul Hanlon’s jacket. [ 61 ] Michelle Scott Mascioli, a Forensic DNA Specialist, Biology Services, RCMP National Forensic Laboratory Services, Ottawa, testified with respect to the testing of the exhibits sent for analysis. She was qualified as an expert at trial to give evidence in the

interpretation and reporting of body fluid identification and hair examinations, the

interpretation and comparison of DNA typing profile results, as well as the forensic application of statistics. [ 62 ] Before going through the lab findings on each exhibit, Ms. Mascioli explained that the lab did not analyze hair samples or saliva. If blood or additional staining was found on the exhibit, it was those areas that were analyzed. An area of the skull mask was also tested for possible biological material, as was tape from the knob of one of the bats.

In areas where blood was identified by the lab and DNA profiling from that area identified only one DNA profile, Corporal Lee said it was most likely that the DNA profile came from the blood. However, if the area identified as blood showed a mixed DNA profile (i.e. more than one contributor), the lab would not be able to say from which DNA profile. [ 63 ] The following is a

summary of the findings from the RCMP lab on each exhibit, as presented by Ms. Mascioli: The Black Mask located outside the Property 1. Blood was identified on four different exterior areas of the black mask that had been located outside the Property, as well as on the interior right, below the lip of the mask. These areas were sent for DNA analysis. Blood could not be confirmed on the interior horizontal head strap but this area was also sent for DNA analysis. 2.

DNA analysis showed that the DNA typing profile from the exterior left jaw of the black mask was that of an unknown individual (designated by the lab as Male 1). The lab was able to exclude Justin Traverse and Mitchell Drodge as the source of this unknown profile. DNA typing profile obtained from the exterior neck guard, exterior upper left cheek and interior right below the lip also matched the Male 1 profile.

The DNA typing profile obtained from the exterior right chin of the black mask was of mixed origin consistent with having originated from two individuals with the profile of the major component (i.e. the major contributor of DNA) matching the Male 1 profile. Finally, the DNA typing profile obtained from the interior horizontal head strap was of mixed origin consistent with having

originated from at least three individuals, with the profile of the major component matching the Male 1 profile. The Skull Mask located inside the Property 1. With respect to the skull mask, blood was identified on the exterior right forehead, exterior upper right forehead, exterior lower left chin, exterior lower middle portion of the head cover, as well as the interior right forehead. These areas were sent for DNA analysis. The interior mouth was also sampled for possible biological material. 2.

Blood from Justin Traverse was identified as matching a sample taken from the exterior right forehead with the estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile being one in 8.0 sextillion. 3. The DNA typing profile obtained from the lower middle portion of the head cover and the interior right forehead matched an unknown individual designated by the lab as Male 2 profile. 4.

The DNA typing profiles obtained from the exterior upper right forehead, exterior lower left chin and interior mouth were of mixed origin, consistent with the profile having been obtained from two individuals. The profile of the major component matched the Male 2 profile. Aluminum Bat found on floor by couch 1. With respect to the aluminum bat that was found on the floor by the couch, blood was identified in several areas; near the middle of the grip, on the upper edge of the taper, on the lower half of the barrel, on the barrel end/cap and on the grip. These areas were sent for DNA analysis.

No blood was found but another area identified as the tape from the knob was also analyzed for possible biological material. 2. The DNA typing profile obtained from the lower half of the barrel matched that of Justin Traverse. 3. The DNA typing profile obtained from the barrel end/cap matched the Male 2 profile. 4. The DNA typing profile obtained from near the middle of the grip was of mixed origin consistent with having originated from three individuals, including a trace component.

The profile of the major component matched that of Justin Traverse, while the profile of the minor component matched the Male 1 profile. 5. The DNA typing profile obtained from the upper edge of the taper was of mixed origin consistent with having originated from at least three individuals, at least one of whom was male. Due to the weakness of some components and the number of possible contributors, no meaningful comparison could be made to any samples. 6. The quantity of human DNA obtained from the tape from the knob and the grip did not meet the minimum requirement for further processing.

The t-ball bat found on the couch 1. With respect to the second baseball bat that was described as a t-ball bat seized from the couch, blood was identified on the border of the taper and grip, the lower end of the barrel, the lower end of the grip and near the middle of the barrel. These areas were sent for DNA analysis. Blood was not confirmed but DNA analysis was also carried out on the area of the grip. 2. The DNA typing profile obtained from the area near the middle of the barrel matched the Male 2 profile. 3.

The DNA typing profile obtained from the border of the taper and grip was of mixed origin consistent with having originated from at least three individuals, with the profile of the major component matching the Male 2 profile. 4. The DNA typing profile obtained from the lower end of the barrel was of mixed origin consistent with having originated from two individuals. The profile of the major component matched that of Justin Traverse, while the profile of the minor component contained limited genetic information and no meaningful comparison could be made to any samples. 5.

The DNA typing profile obtained from the lower end of the grip was of mixed origin consistent with having originated from three individuals, including a trace component. Excluding the trace component from which there was limited genetic information, and no meaningful comparison could be made, to any samples, the profile of the major component matched the Male 2 profile while the profile of the minor component matched the Male 1 profile. 6.

With respect to the areas sampled near the middle of the barrel and the grip, the DNA typing profiles were of mixed origin consistent with having originated from at least three individuals, at least one of whom was male. Due to the weakness of some components and the number of possible contributors, no meaningful comparison could be made to any samples. Black Jacket 1.

The DNA typing profile obtained from areas of the jacket that were analyzed matched the Male 2 profile with the exception of one area sampled (namely the exterior right clavicle) that was of mixed origin consistent with having originated from two individuals. The profile of the major component matched the Male 2 profile. The trace components contained limited genetic information and no meaningful comparison could be made to any samples. Black Shirt

1. With respect to the shirt, the DNA typing profile obtained from all areas analyzed matched the Male 1 profile. DNA Profile Matching 1. Justin Traverse and Mitchell Drodge each provided the RCMP with DNA samples against which the lab could compare DNA profiles. 2. The RCMP were later able to obtain a warrant to take a DNA sample from Mr. Nicholson. Subsequent testing of Mr. Nicholson’s DNA determined that the Male 1 profile matched that of Mr. Nicholson.

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile was one in 130 quintillion. 3. A search of the crime scene index of the National DNA Databank of Canada matched Paul Hanlon as the Male 2 DNA profile. The RCMP also obtained a warrant to obtain a DNA sample from Paul Hanlon that confirmed that he matched the Male 2 DNA profile.

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile was one in 79 quintillion. [ 64 ] In addition to collecting exhibits to send for analysis and obtaining statements from Mr. Drodge and Mr. Traverse, the RCMP proceeded to take statements from Paul Hanlon, Mr. Nicholson, Jordan Aubie and the wife of Mr. Aubie. [ 65 ] Constable Loder testified that he attempted to obtain an initial cautioned statement from Mr. Nicholson on September 6, 2017 at 4:10 p.m. However, it was apparent that Mr.

Nicholson was not in good health and Constable Loder therefore stopped the interview at 4:33 p.m. A general member of the RCMP brought Mr. Nicholson to the hospital later that day to be seen for his head injury. Constable Loder took a second cautioned statement from Mr. Nicholson on September 8, 2017 at 2:10 p.m. [ 66 ] Constable Loder also testified that he had previously done surveillance of Hanlon Auto Sales, a business operated by Paul Hanlon. In the course of that surveillance, he had taken note of a cellphone number that was noted on a sign as pertaining to Hanlon Auto Sales.

This number corresponded with the cellphone number that sent the text messages to Justin Traverse and Mitchell Drodge referred to by them in their testimony. Defence Evidence [ 67 ] The sole witness called for the defence was Mr. Nicholson. He testified that he is a 57-year old married father of two children, aged 16 and 19. He is unemployed now due to an injury but had previously carried out mechanical and heavy equipment work. He also had a tire repair and carpentry business. As at September 3, 2017, he was working for a company driving an excavator that cut metal.

His work required him to live at camp away from his home. However, he returned home on August 25, 2017 with the intention to return to work shortly after September 3, 2017. [ 68 ] Mr. Nicholson has been living at the same address in Freshwater, Carbonear for approximately ten years. He testified that he recognized the RCMP at the Harbour Grace Detachment and knew them personally because they had been helping him with issues he had with his children, including issues with drug use. [ 69 ] Mr. Nicholson testified as to his recollection of events that occurred on September 3, 2017.

He says that he had spent the day with his wife. As she had just had an operation, she was tired so he brought her from her mother’s home to their own house to make sure she got some sleep. [ 70 ] He said he received a phone call from Paul Hanlon asking him to go with him that night to get a car from Mitchell Drodge that may need repair. He agreed as he expected to receive between $100 and $200 for the repair work. [ 71 ] Mr. Nicholson said that his relationship with Paul Hanlon related to the repair of vehicles only.

He had worked on cars for Paul Hanlon, including picking up cars for which payments were owed to Mr. Hanlon. He said that he had started a mechanical service for elderly people to supplement his income and continued to fix cars as a side job for people who had financial difficulties. [ 72 ] Mr. Nicholson denied any knowledge of Mr. Hanlon’s prior meeting with Mr. Traverse the Wednesday prior to the incident or of any threats that may have been made by Mr. Hanlon to either Mr. Traverse or Mr. Drodge. [ 73 ] Mr. Nicholson said he had no issues with Mr. Traverse or Mr. Drodge.

When asked whether he had known Mitchell Drodge or Justin Traverse prior to September 3, 2017, Mr. Nicholson said that he had known Mitchell Drodge for six or seven years and it was Mitchell Drodge who had introduced him to Paul Hanlon. He met Justin Traverse early in the Spring of 2017. [ 74 ] On the evening of September 3, 2017, after ensuring his wife was in bed, Mr. Nicholson said he left to pick up Paul Hanlon at Mr. Hanlon’s home in Crocker’s Cove. He was driving his blue Pontiac Vibe. When he picked up Mr. Hanlon, Mr. Aubie was present and he drove on with them in Mr. Nicholson’s car to the Property.

The drive took approximately twenty minutes. Mr. Nicholson explained that Mr. Aubie needed to be with them as Paul Hanlon did not have a driver’s license. They needed two drivers if they were going to drive the car back from the residence that he thought was that of Mr. Drodge. [ 75 ] Mr. Nicholson said that when he pulled up to the Property he saw the black Pontiac Sunfire he had done work on four to five months earlier parked in front of the duplex. He proceeded to back his car into the front of the duplex apartment on the left.

He was not sure of the exact time that he arrived but he knew it was getting quite dark. It was warm outside but not raining. [ 76 ] Mr. Nicholson said that he was wearing work clothes at the time, consisting of a black work shirt, blue jeans with a belt and probably steel-toe work boots. He had a black face mask folded up in his back pocket that he used when working on vehicles. He confirmed that this black face mask was the same one that had been located outside the Property. It was black on the outside and white inside with elastic straps on the top and sides. Mr.

Nicholson demonstrated how he folded up his mask using several folds and then placed it in his back pocket. He also demonstrated how he wore his mask with the bottom

part covering his neck. He may have also had

safety glasses in his front pocket. His tools were in the back of his car. [77] Mr. Nicholson said that after he parked, Paul Hanlon got out of the car and headed towards the apartment, with Mr. Nicholsonfollowing Mr. Hanlon up the stairs. Mr. Hanlon knocked on the door and it swung open. [78] Mr. Nicholson said that he walked in behind Mr. Hanlon. The next thing he knew he was barely into the apartment, maybe oneor two feet, before he was being hit. He was not sure what he was being hit with, but was being hit from all over. The first hit was to hishead and there were several hits to the back.

He said the next thing he knew he was face down in a pool of blood. [79] Mr. Nicholson could not identify either of the two bats, but there was a bat in Mitchell Drodge’s hand. He denied he and PaulHanlon bringing the bats into the premises and denied he had ever held either of the two bats. [80] Mr. Nicholson said he grabbed a chair to block himself and realized he was being hit by Mitchell Drodge who was in front ofhim. Mr. Nicholson said he dropped the chair onto the floor in front of Mr. Drodge. He then pushed Mr. Drodge into a corner whereMr. Drodge began screaming and hollering. Mr.

Nicholson said he believed he received a back injury from the partition between theliving room and kitchen. [81] While Mr. Nicholson did not explain how he ended up going from the kitchen/living room area, he said Justin Traverse andPaul Hanlon were bleeding and hitting each other in the bathroom. Mr. Nicholson said he asked Justin Traverse to let go of Mr. Hanlon. He then carried Paul Hanlon out of the bathroom. He described the manner of carrying Mr. Hanlon out as being almost fireman stylewith Mr. Hanlon’s left arm over his shoulder and Mr. Nicholson’s arm under Mr. Hanlon’s armpit. [82] Mr.

Nicholson said that he had to almost crawl over a lot of debris, blood, broken glass and other items on the floor as he left. Mr. Nicholson described the house as a disaster with the kitchen chairs and table overturned and the couch upside down. He said he wasbeing hit in the back the entire way out. Mr. Aubie was in the doorway and took Paul Hanlon from him. [83] Mr. Nicholson said that, after exiting the Property, he wiped the blood off his face using his work mask that had been in hisback pocket. He could recall being at the driver’s side door of his car when he wiped his face.

He thought he put the face mask in hiscar but it must have fallen on the ground. [84] When questioned regarding whether he had previously seen the masks that had been entered into evidence, Mr. Nicholson saidhe was aware of only one mask at the Property and that was his own mask. With respect to the skull mask, he testified that he hadpreviously seen it in a trailer in which Mitchell Drodge was living. That trailer was parked on Paul Hanlon’s property. He recalledseeing the mask in the trailer and saying to Mitchell Drodge that if he ever wore it he would “scare the shit out of him”. [85] Mr.

Nicholson said he then drove his vehicle from the scene with Paul Hanlon and Mr. Aubie as passengers. His memory wasvery foggy. He was almost passing out and was wiping blood out of his eyes, causing him to almost go off the road at one point. Healso recalled seeing a police car going in the opposite direction while he was stopped at the stop lights in Carbonear. [86] He said that upon arrival, Paul Hanlon went in and Mr. Nicholson proceeded into the hospital on his own. He was brought intoan examining room and told to lie down.

He recalls that a police officer said that he was under arrest and asked him to empty hispockets. The next thing he remembers is waking up in a holding cell. [87] Mr. Nicholson recalled Constable Loder asking him if he wanted to give a statement while he was being detained in the holdingcells and he said yes. At that time, Constable Loder told Mr. Nicholson that he had been “up there” to get a statement a couple of daysbefore but Constable Loder had been concerned for his health and therefore sent him to hospital. Mr.

Nicholson said he could notremember any prior attempt by the RCMP to obtain a statement from him. [88] Mr. Nicholson said that, in addition to the time that Constable Loder says he was taken to hospital, he was taken to hospital onanother occasion when he could not be revived in the holding cells. He said a matron at the jail tried to wake him up and he was broughtto hospital when she could not. He also testified that a reverend had dropped off a bible to him. [89] With respect to his injuries, Mr.

Nicholson provided the Court with photographs of his injuries that he said were taken by hiswife within a couple of hours after he was released on conditions. These photographs showed an injury to his head and bruising on theleft side of his ribs. He described his ribs as being busted up and deformed. Mr. Nicholson also provided the Court with his medicalrecords from the Carbonear General Hospital relating to the incident. SUBMISSIONS AND LAW [90] As all counts arise out of the same incident and the complainants and Mr.

Nicholson gave incompatible testimony as to how thenight unfolded, credibility of witness testimony lies at the heart of this case. [91] As in all criminal prosecutions, I am mindful that it is the Crown who must prove guilt beyond a reasonable doubt. In the 1997Supreme Court of Canada case of R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory, J., described reasonable doubt asfollows: 36 …It should be explained that: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence;

the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty mustacquit. [92] In a subsequent decision of the Supreme Court of Canada in R. v.

Starr, 2000 SCC 40, at paragraph 242, the court described thestandard as much closer to absolute certainty than to proof on a balance of probabilities. [93] In cases where credibility is important, a trial judge does not need to firmly believe or disbelieve any witness or set ofwitnesses. In dealing with credibility in a case where the accused testifies, I must also be mindful of the instructions of the SupremeCourt of Canada in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, at paragraph 11, where the court states the following: 11 Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. Atrial Judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [94] This three-part instruction is simply a useful tool in applying the general principle that the trial judge must consider the totalityof the evidence and only convict if satisfied the Crown has proven guilt beyond a reasonable doubt.

In cases where credibility oftestimony is involved, considering this three-part approach provides a roadmap when considering whether there is a reasonable doubt. [95] The Newfoundland and Labrador Court of Appeal in R. v. K.P., 2019 NLCA 37 recently described the W. (D.) framework as a“helpful map”, relying upon the Supreme Court of Canada’s decision in R. v. Y. (C.L.), 2008 SCC 2, at paragraph 8. The majority of theSupreme Court of Canada noted that the purpose of this map is to ensure a verdict is not based on a choice between the accused’s andCrown’s evidence.

The trial judge must consider whether the whole of the evidence leaves him or her with a reasonable doubt on theaccused’s guilt. [96] Applying W. (D.), the Crown and the Defence take diametrically opposed views on the credibility of the evidence of Mr.Nicholson. [97] Counsel for Mr. Nicholson says that Mr. Nicholson withheld a vigorous cross-examination. Mr. Nicholson’s evidence that hedid not know he was going to the Property for a fight, or to impose or receive any injuries, was plausible and believable. Mr. Nicholsonthought he was merely going there to repair a vehicle and make $100 to $200.

That evidence is more believable than the suggestion hewas going there to get into a baseball bat fight. [98] Further, counsel for Mr. Nicholson says at no point in his testimony did Mr. Nicholson try to bolster his own credibility. Hegave his evidence and answered all questions in an honest and forthright manner, to the best of his ability. If he could not remember adetail or event, he quite frankly said so. Mr. Nicholson’s counsel submits that, as things happened so quickly and Mr. Nicholson hadsuffered a head injury, his lack of memory is not surprising.

[99] Counsel for Mr. Nicholson also says that Mr. Nicholson’s evidence is in line with the DNA evidence, the evidence found at thescene and the medical evidence with respect to his injuries. The medical evidence and the evidence of the other witnesses indicates thatMr. Nicholson suffered a serious head injury. This head injury would have caused him to bleed profusely inside the Property. As aresult, it is possible that any blood found on the bats would have come from his injury or his blood that was on the floor of theapartment. [100] Further, counsel for Mr. Nicholson points out that the evidence indicates Mr.

Nicholson went into the washroom where PaulHanlon and Justin Traverse were fighting. At that time, Mr. Nicholson may have put his hands on one of the bats to try to get Mr.Traverse to release the bat and allow him to get Mr. Hanlon out of there. At that point, Mr. Nicholson would have already been bleedingfrom his injuries. [101] The presence of Mr. Nicholson’s blood on the black face mask is explained by Mr. Nicholson’s testimony that he used his blackwork mask to wipe blood away from his face. All agree that Mr. Nicholson was bleeding as he left the apartment.

That would alsoexplain the blood on the black shirt. [102] Counsel for Mr. Nicholson also says Mr. Nicholson always acknowledged that he had the black face mask with him at theProperty in his back pocket and that he took it out of his pocket outside the Property. [103] On the issue of the masks, counsel for Mr. Nicholson also says he was consistent in his evidence that he never saw a mask at theProperty other than his own black work mask that was in his pocket. Counsel for Mr. Nicholson says that this evidence is more crediblethan the evidence of the two complainants who gave different versions of the masks.

He notes that Mitchell Drodge said that there was aScream mask and a green and white mask worn by the alleged assailants. However, no Scream mask was located at the residence. Mr.Traverse said that the assailants were wearing Halloween rubber, pull-over masks. He was positive that there were two Halloweenmasks. Again, two Halloween masks were not located at the premises. [104] Counsel for Mr. Nicholson also points out that Mr. Nicholson’s evidence is consistent with him not suspecting there would be anyaltercation at the residence. In particular, Mr. Nicholson’s evidence of assisting Mr.

Hanlon out of the home and breaking up the fight isconsistent with that of Justin Traverse. Mr. Traverse said that he asked Mr. Nicholson to get Paul Hanlon out of the house and he did. Mr. Drodge’s evidence is that Mr. Nicholson walked out of the house through the door. This evidence is all consistent with Mr.Nicholson having no intention to engage in a fight. [105] On the other hand, the Crown says that Mr. Nicholson’s evidence is not credible and should not leave this Court with a reasonabledoubt. The Crown says that once this Court sets aside Mr.

Nicholson’s evidence, the evidence presented by the Crown is clear andcorroborated by the other evidence. That evidence establishes beyond a reasonable doubt that Mr. Nicholson committed the offences onwhich it seeks a conviction. [106] The Crown refers to a 2019 decision of the Nova Scotia Supreme Court in R. v. C.Y., 2019 NSSC 124. At paragraphs 113 to 117of that decision, Brothers, J. gives an overview of factors to take into account when assessing credibility. [107] At paragraph 114, Brothers, J., refers to the Nova Scotia Provincial Court case of R. v.

Jacquot, 2010 NSPC 13, in which JudgeTax identifies the tools for assessing credibility and reliability of testimony. At paragraph 40, he says as follows: 40 There are many tools for assessing the credibility and reliability of testimony. First, there is the ability to consider inconsistencieswith previous statements or testimony at trial and with independent evidence which has been accepted by me. Second, I can assess thepartiality of witnesses due to kinship, hostility or self-interest.

Where an accused person testifies this factor must be disregarded insofaras his or her testimony is concerned, as it affects every accused in an obvious way, and may have the effect of reversing the onus ofproof. Third, I can consider the capacity of the witness to relate their testimony, that is, their ability to observe, remember andcommunicate the details of their testimony.

Fourth, I can consider the contradictory evidence as well as the overall sense of the evidenceand when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable. [108] Judge Tax further noted that in all cases in which credibility is in issue, it is up to a trial judge as to whether he or she believes andaccepts all, some or none of the evidence of a witness. [109] Further, at paragraph 116 of C.Y., Brothers, J. notes that a witness’ motive to mislead may also be a helpful consideration whenassessing the credibility of that witness. [110] Finally, at paragraph 117, reference is made to the Ontario Court of Appeal decision in R. v.

G. (M.) (1994), (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.) in which the court noted that inconsistencies on minor matters of detail are normal and are tobe expected. They do not generally affect the credibility of a witness. However, where the inconsistency involves a material matterabout which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. [111] The Ontario Court of Appeal also noted, at paragraph 28 of G. (M.), that it is true that minor inconsistencies may not diminish thecredibility of a witness unduly.

However, a series of inconsistencies may become quite significant and cause the trier of fact to have areasonable doubt about the reliability of the witness’ evidence. The court must look to the totality of the inconsistencies in order toassess whether the witness’ evidence is reliable. [112] Finally, Crown counsel refers to the objections it made to the evidence with respect to Mitchell Drodge having prior possession ofthe mask located inside the Property based on the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.). TheCrown also objected to the evidence of Mr.

Nicholson using the chair to defend himself from Mitchell Drodge, based on the same rule. [113] The rule in Browne v. Dunn requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach. The rationale for the rule is explained by Lord Herschell at pages 70 to 71: Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended

to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. [ 114 ] In this case, the Crown notes that counsel for Mr.

Nicholson did not cross-examine Mr. Drodge or Mr. Traverse on the issue of whether Mr. Nicholson picked up a chair or any other object in the kitchen to defend himself. Mr. Drodge testified that he was down on the floor being beaten by Mr. Nicholson and managed to retrieve the bat and get up. Neither he nor Mr. Traverse made reference to Mr. Nicholson having gone into the kitchen to obtain a chair or dropping a chair in front of Mr. Drodge. [ 115 ] Perhaps more significantly, Mr. Traverse testified there were no masks in the home and Mr. Drodge said he had not previously seen either of the two masks.

Counsel for Mr. Nicholson did not put to Mr. Drodge that he allegedly had prior possession of the mask that had been found in the Property referred to as the Scream mask. It was also not asked of him whether he had previously lived in a trailer at the premises of Mr. Hanlon. [ 116 ] In final submissions, the Crown also noted that counsel for Mr. Nicholson had failed to cross-examine the complainants to challenge them on the fact that the door was busted in or to seek another explanation as to how the door may have been damaged. Again, this goes to the rule in Browne v.

Dunn . [ 117 ] When the first two objections were made during Mr. Nicholson’s testimony, I allowed counsel some time to consider submissions with respect to the rule in Browne v. Dunn and any remedy for a breach; in particular, whether there would be a request that one or more witnesses be recalled. After some consideration, counsel advised that they would not be requesting that witnesses be recalled. [ 118 ] The Crown took the position that the failure to cross-examine should be considered by me when determining the weight of the evidence. In particular, the Crown submitted that the evidence of Mr.

Nicholson was fabricated to match the evidence that he heard in Court. [ 119 ] I note that while the failure to cross-examine a witness on a specific issue generally tends to support an inference that the opposing party accepts a witness’ evidence on that specific point, as a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the discretion of the trial judge and depends on the circumstances of each case. [ 120 ] In this case, as neither party requested that Mr. Drodge or Mr.

Traverse be recalled, I accept that the appropriate way to deal with counsel for Mr. Nicholson’s failure to cross-examine the witnesses on these points is to consider this when making my assessment of the evidence. [ 121 ] Applying these considerations, the Crown asserts that the main reason why the evidence of Mr. Nicholson is not credible is that his evidence was inconsistent both within itself and in relation to the other evidence. While some of these inconsistencies are minor in nature, others are more significant.

Even with respect to the minor inconsistencies, the large number of these inconsistencies renders the testimony more incredible. The following are the inconsistencies noted by the Crown: 1. Mr. Nicholson testified that he had “no issue” with Mitchell Drodge or Justin Traverse; i.e. that he had no reason to wish them any harm before the incident. However, the Crown notes that, on cross-examination, Mr. Nicholson acknowledged giving a statement to Constable Loder indicating that he did have issues with Mitchell Drodge prior to the incident.

These issues revolved around an allegation that Mitchell Drodge had been providing drugs to Mr. Nicholson’s teenage daughter and Mr. Drodge had hit on her at a party. Further, Mr. Nicholson told Constable Loder that, on the evening of September 3, 2017, he was going to tell Mitchell Drodge to stay away from his daughter because “he’d been giving her drugs and stuff”. The fact that Mr. Nicholson had issues with Mitchell Drodge was confirmed during Mr.

Nicholson’s own testimony as well when, during cross-examination, he asked Crown counsel if counsel would have had issues if the same concerns had arisen with his own daughter. As such, the Crown says that there is both internal inconsistency and inconsistency with a prior statement in respect of this testimony. 2. A second more minor inconsistency relates to Mr. Nicholson’s evidence that he had known the RCMP officers at the Harbour Grace Detachment for approximately four years as they had been helping him deal with issues involving his children. The Crown says that this evidence was an attempt by Mr.

Nicholson to paint himself as someone who got along with people; not only the complainants, but the police. However, the inconsistency in this evidence became apparent when Constable Agha testified that he met with Mr. Nicholson in the holding cells days after the incident. At that time, Mr. Nicholson asked Constable Agha if he was Constable Loder. Mr. Nicholson’s evidence was that he could not remember asking Constable Agha that question. 3. Another series of inconsistencies results from Mr. Nicholson’s evidence relating to the use of his vehicle. Mr.

Nicholson testified that he had driven his vehicle to and from the Property. When Crown counsel put to Mr. Nicholson that Mr. Aubie said he had been driving the vehicle, Mr. Nicholson responded by saying he (Mr. Nicholson) may have been suffering from memory loss. The Crown says that this was a feigned loss of memory. Also, with respect to the vehicle, Mr. Nicholson told Constable Agha while in a holding cell that his vehicle had not been at the Property. He said that he had retrieved the car later. The Crown submits that Mr.

Nicholson would not have known at the time he made that utterance to Constable Agha that the black face mask had been found outside the car. Mr. Nicholson’s evidence is that he believed the mask was still in the car. Mr. Nicholson would therefore have had reason to lead police away from searching the vehicle. As such, this was a deliberate lie to Constable Agha. For his part, Mr. Nicholson says he cannot remember making this utterance.

The Crown also notes that Mr. Nicholson’s evidence is that it did not dawn on him to tell Constable Loder his mask was in the car even after Constable Loder told him the investigation involved masked men. 4. A less significant inconsistency in Mr. Nicholson’s evidence relates to the extent of the injuries he suffered in the incident. The Crown suggests that Mr. Nicholson was not truthful in this aspect of his evidence as he wanted the Court to see him as a victim. In particular, the Crown points to Mr. Nicholson’s testimony that he had to be revived while in the holding cells.

However, the constables who testified were the ones who had dealt with Mr. Nicholson while he was in custody. They gave no evidence of any such incident. It is true that Constable Loder was clear that Mr. Nicholson was not well on September 4, 2017 and he had to be brought to hospital for medical attention. This is confirmed in the medical reports that were entered into evidence by Mr. Nicholson. These records indicate that Mr. Nicholson was first seen in the Emergency Room of the Carbonear General Hospital on the night of September 3, 2017 after being assaulted with a bat.

He had suffered a head injury, had signs of trauma and a tender back. His head injury was closed with eight staples. He was next seen in the Emergency Room at the same hospital late in the afternoon of September 4, 2017 when he was diagnosed with a post-traumatic concussion. At that time, he was also complaining of a tender cervical spine. The records note that his chest was clear. No other emergency room records were entered into evidence. Mr. Nicholson also entered into evidence photographs showing bruising of his ribs. He described his ribs as having been “busted”.

However, this was not supported by the medical reports which noted that his chest was clear. There were no notes of any breathing issues. As well, there was no dating on any of these photos to indicate when they may have been taken. Mr. Nicholson could not explain these discrepancies between his evidence and the medical records. 5. A more significant inconsistency relates to the location of the black face mask. Mr. Nicholson gave evidence that he wiped his bloody face with the mask when he was near the car. He thought he then placed the mask in the vehicle.

However, the photographs taken by both Corporal Lee and Constable Douthwright demonstrate that the mask was located near the steps to the patio below the picture window of the duplex on the right side. In particular, on close examination, the photos reveal that the mask was located in the area where the lateral bars supporting the patio descend from left to right. The only area of the patio where the lateral bars descend in this direction is near the steps leading to the patio of the duplex to the right. That is the duplex in which Mr. Traverse resided. Meanwhile, Mr.

Nicholson testified that he had reversed his car into an area in front of the duplex to the left. In order for the mask to end up where it was found, Mr. Nicholson would have had to wipe his face with the mask and throw it far into the air, past the steps leading up to the duplex on the right. His evidence was that he thought he placed it in the car. The Crown suggests that Mr.

Nicholson was conforming his testimony as to how the mask ended up at the scene (i.e. he took his work mask out of his back pocket where it had been folded and used it to wipe his face), but that evidence does not match up with the evidence located at the scene. 6. Crown counsel also suggests that Mr. Nicholson’s evidence with respect to where and how the vehicle was parked was internally inconsistent. Mr. Nicholson said that he was going to the Property to do repair work on a vehicle. The Crown says that if Mr.

Nicholson thought the vehicle may not start, as a mechanic he would try to get as close as possible to the motor vehicle by parking head-on with the lights on the vehicle to be repaired. As well, if there was an issue with a car’s battery, one would drive in head-on. On the contrary, the manner in which Mr. Nicholson parked the vehicle was how one would park in order to make a quick exit. 7. Another inconsistency relates to how Mr. Nicholson says he used the black face mask to wipe blood from his face and head. In particular, Mr.

Nicholson demonstrated during his testimony how he had folded the mask up with several folds before placing it in the back pocket of his work pants or jeans. The mask itself was a full head mask with a large extension going down the neck to the chest. Mr. Nicholson said that, as he was exiting the house, he took the folded up mask out of his back pocket and used it to wipe away the blood that was running down his face. However, the DNA analysis of the mask indicates that Mr. Nicholson’s blood was located on the interior right below the lip of the mask, and his DNA was on the interior horizontal head strap. If Mr.

Nicholson had folded the mask in his back pocket as he suggested, he would have had to open several folds of the mask and turned the mask inside out for the blood to have been located on the interior. The Crown suggests that the most plausible explanation for how the blood was located on the interior is that Mr. Nicholson was, in fact, wearing the mask when he received the injury to the top of his head. While this is the Crown’s submission, I do note that the RCMP Forensics Lab Report does not specifically identify the interior horizontal head strap as containing blood.

That area was only noted as “blood not confirmed” with the area still sent for DNA analysis. From my understanding of the testimony of Ms. Mascioli, if blood has not been noted as being “identified” by a screening test, that is because other substances could cause a positive reaction and the lab cannot confirm the stainings were blood. As such, the DNA analysis may have located Mr. Nicholson’s DNA from a source other than blood or hair (which was specifically not tested). The interior right lip did, however, have identified blood that was analyzed and the sole contributor of DNA in that area was Mr. Nicholson. 8.

A more significant discrepancy is Mr. Nicholson’s evidence relating to the mask located inside the Property. The DNA analysis of this mask indicates that the blood located inside the mask and almost all areas on the exterior belonged to Paul Hanlon. However, Mr. Nicholson’s testimony seemed to suggest that Mitchell Drodge had owned the mask. In particular, Mr. Nicholson testified that he did not get a good view of this mask when it was entered into evidence during the trial. His counsel then pulled out the mask during Mr. Nicholson’s direct examination. It was at that point that the Crown notes that Mr.

Nicholson said, as if he had an epiphany moment, that he had seen that same mask with Mitchell Drodge when he was living in a trailer located on property owned by Paul Hanlon. Crown counsel suggests this late disclosure had no air of reality as Mr. Nicholson had received disclosure from the Crown months prior to the trial. Further, as previously noted, counsel for Mr. Nicholson failed to cross-examine Mr. Drodge on this issue, which is suggestive of fabrication. As well, the suggestion was inconsistent with the fact that it was only Paul Hanlon’s DNA that was found on that mask.

The Crown says it also makes no sense to suggest that Mitchell Drodge brought that mask with him to the home of Justin Traverse, especially since there was no evidence suggesting that either Mitchell Drodge or Justin Traverse had reason to suspect that they would be attacked that evening. Crown counsel suggests that Mr. Nicholson made up this testimony as he went along. In considering this submission, I note that it is not correct to say it was only Paul Hanlon’s blood that was found on that mask as Justin

Traverse’s DNA was also found on the exterior right forehead. However, that would be consistent with him having fought Paul Hanlon in the bathroom. DNA in all other areas was either entirely from Paul Hanlon or he was the major contributor. 9. Another area in which Mr. Nicholson’s testimony was contradicted by other evidence is with respect to who touched the baseball bats. Mr. Nicholson says he did not touch the bats, yet his DNA is on the grips of both baseball bats. Paul Hanlon’s DNA is on the grip of one bat. The Crown submitted there was no other DNA on the grips of either bat.

In fact, the only other DNA on the bats was that of Justin Traverse, on the barrel of one bat. In considering this submission, I note that on review of the RCMP lab report, the DNA of Justin Traverse was in fact found on the middle of the grip of one of the bats, with DNA in that area originating from three individuals, only two of which could be profiled (i.e. Mr. Traverse and Mr. Nicholson). However, this is consistent with the evidence of Mr. Traverse that he grabbed a bat. Mr.

Nicholson’s counsel suggested that his client’s DNA on the grips and other areas of the bats could have ended up there because he was bleeding profusely at the scene and he may have touched a bat in the bathroom. The Crown says that it is incredulous to suggest Mr. Nicholson’s DNA was on the grips of both bats while no DNA of Mitchell Drodge could be identified on either bat. The suggestion that DNA of Mr. Nicholson ended upon the grips solely because the bats ended up on the floor and were contaminated by his blood is not credible. The Crown says that in order for Mr.

Nicholson’s DNA to be on the grips of both bats, he must have touched them. The areas in which DNA was present is more consistent with the evidence of the complainants that Mr. Nicholson walked in with the bat in his hand. 10. Another significant inconsistency between the evidence of Mr. Nicholson and the other evidence presented at trial is with respect to the damaged entrance door. Both complainants testified that the door was busted in without warning.

Constable Lee, while not testifying as an expert on footprints, said that when she arrived at the scene the next morning, she noticed markings on the door that were consistent with a door being kicked in. The photographic evidence, the testimony of the complainants and the testimony of the police officers all indicate the doorframe was broken with pieces of debris being evident over the floor. However, Mr. Nicholson’s evidence was that Paul Hanlon merely knocked on the door and it swung open. Mr. Nicholson then followed Mr. Hanlon. Mr.

Nicholson said he did not think there was anything out of the ordinary about the manner of their entrance until he was beaten with bats upon entry. Mr. Traverse testified the door was not damaged previously. In light of the damage to the door and the evidence of the other witnesses, the Crown says it is not believable that Mr. Nicholson and Mr. Hanlon entered normally. It was clear that the door was busted open at some point in time. No other explanation was provided or sought.

The Crown also points out that the testimony as to a normal entrance is inconsistent with the threatening text messages sent by Paul Hanlon to Mitchell Drodge and Justin Traverse. The Crown suggests that if Mr. Hanlon were returning to someone’s house in those circumstances, the entrance would not be either casual or normal. 11. The Crown says Mr. Nicholson was also inconsistent with respect to the evidence of why he was going to the home of Justin Traverse. He suggested that he had agreed to go there with Paul Hanlon to obtain a car that may have been broken down.

When cross- examined regarding why he would have agreed to go to get a car at ten o’clock at night, Mr. Nicholson replied that he thought Mr. Drodge may not have wanted the car anymore. Mr. Nicholson also said he was aware that the black Sunfire that he was going to repair had been rebuilt from parts months earlier and probably needed a starter. Mr. Nicholson also said that his job in going to the Property that evening was to fix the car and drive it back. He denied knowing that the car may be repossessed by Mr. Hanlon. However, Mr.

Nicholson acknowledged that in his prior statement to police, he said that if the persons who owed money on a car paid money, they would often not take the car, but if they did not pay, he figured that Paul Hanlon would take the car. He said he thought nothing odd about this. Overall, Mr. Nicholson did not clearly answer questions regarding whether he was going to repair a car, retrieve a car, or repossess a car. 12. The final inconsistency noted by the Crown is with respect to Mr. Nicholson’s ability to see the manner of entry to the Property. The Crown says that Mr.

Nicholson gave contradictory and inconsistent evidence with respect to whether it was dark or getting dark when it was put to him that Mr. Hanlon said he may have been pitched through the front door by one of the complainants who came up behind him. In his statement to Constable Loder and in his testimony, Mr. Nicholson said that he thought the manner of entry was normal but when presented with the possibility Mr. Hanlon said someone had pushed him through the door from behind, Mr. Nicholson explained that he got hit in the head and down he went again suggesting his memory may not be clear.

He later said that the door could have been kicked in. [ 122 ] The Crown asserts that these series of inconsistencies, both internal and external, result in the evidence of Mr. Nicholson lacking credibility. [ 123 ] The Crown also disagrees with counsel for Mr. Nicholson that Mr. Nicholson was forthright. In particular, the Crown says the evidence is clear that Paul Hanlon was wearing a mask when he entered the home and his blood is located on the mask that was located at the scene. As well, the evidence clearly indicates that the front door was broken into or “busted”.

Both complainants testified almost exactly as to how the door opened

[…]