R. v. Hutchings, 2020 NLSC 154

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hutchings , 2020 NLSC 154 Date : December 11, 2020 Docket : 201901G7194 Her Majesty The Queen v. Anthony Hutchings Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 23 and 24, 2020

Summary: The accused was convicted of break and entry into a dwelling house and robbery. One of the victims was able to recognize the accused from prior dealings with him. Appearances: Stephen W. Loney Appearing on behalf of the Crown Sarah E. Evans Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Ryan, 2011 NLCA 53; R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197; R. v. W.(D), (SCC), [1991] 1 S.C.R. 742; R. v. Downey, 2018 NSCA 33 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] The accused, Anthony Hutchings, stands charged with break and entry of a dwelling house and robbery.[1] The formalIndictment reads, as follows: ON OR ABOUT the 12th day of August, 2019, at or near St.

John’s, in the Province of Newfoundland and Labrador, did break and entera certain place, to wit: the dwelling house of Nathan Jones and Joshua Druken situated at 81A Neptune Road, contrary to Section348(1)(a)-348(1)(

d) of the Criminal Code. ON OR ABOUT the 12th day of August, 2019, at or near St. John’s, in the Province of Newfoundland and Labrador, did rob goods fromNathan Jones and Joshua Druken, contrary to

Section 343-344(1) of the Criminal Code. [2] It is alleged that Hutchings was one of three individuals who kicked in the door to the basement residence at 81A NeptuneRoad, St. John’s, on Monday, 12 August 2019 and stole a ring from the finger of one of the occupants, Nathan Jones. It is also allegedthat Hutchings and his accomplices stole a package of lighters. [3] With regard to the elements of the two offences, the principal issue is whether, based on the whole of the evidence, the Crownhas proven the identity of Hutchings beyond a reasonable doubt.

While there was one other witness to what allegedly transpired, JoshuaDruken, this individual did not testify. the evidence [4] Jones testified that on 12 August 2019 he was living with his girlfriend at 81A Neptune Road, St. John’s. He was home onthat date with his friend, Joshua Druken, when he witnessed Hutchings exiting from an orange hatchback car, make and model unknown,brandishing what appeared to be an assault rifle. Fearful, he locked the entry door’s deadbolt.

Hutchings proceeded to smash the door’swindow and together with two other males, whom he did not recognize, kicked in the door. [5] Those who entered the apartment were not wearing masks, although one of the intruders had a white hoodie pulled over hishead. Jones testified that he was ordered by Hutchings to lie on the floor, while the trio proceeded to search the apartment. Hutchingswas the only one to speak and asked him if anyone was home upstairs. According to Hutchings, his friend, Joshua Druken, was presentthroughout, although he did not elaborate on how Druken was treated.

The intruders made off with a box of lighters and Hutchings tookhis father’s graduation ring from his finger. He could not place a value on the ring. The three then left and got into the orangehatchback and drove away. [6] After the intruders left Jones ran outside and asked his neighbor to phone the police. [7] Photos were entered into evidence showing the apartment door resting on a couch in the kitchen area of the apartment. According to Jones, this was its final resting place after being kicked from its hinges.

The door’s deadbolt can be seen protruding in thelocked position and one hinge remains attached to the doorframe. The door’s window is broken. [8] Twice Jones testified that he was “100%” sure the person who smashed the window, ordered him onto the floor and took hisfather’s graduation ring, was Hutchings. He had met Hutchings on a couple of occasions over several days at a funeral a couple of yearsprior and had a brief conversation with him at the time. He correctly described Hutchings as having no hair and a teardrop tattoo on hischeek.

Jones also testified that he had dated Hutchings’ sister for about a year and a half, but did not say whether he had any contactwith Hutchings during this relationship. [9] According to Jones, in addition to his encounter at the funeral home, he also recognized Hutchings as he had come to theapartment earlier on the 12th, again inquiring if anyone was home upstairs.

He maintained that in addition to recognizing Hutchingsfrom his lack of hair and facial tattoo, he could identify his voice from his previous encounters. [10] After the incident, he sent a Facebook message to Hutchings with words to the effect, “you’re fucked, no mask, I want mydad’s ring ‘back.” Jones testified that he sent this message to Hutchings as he “knew it was him.” When it was suggested during cross-examination that he had made the whole thing up, he responded, “how is that possible?”

[11] Jones subsequently retrieved the ring from the upstairs tenant, who reportedly got it from one of the tenant’s friends. In anyevent, by means that are less than clear, it eventually found its way back to Jones. [12] Constable Jeremy Babstock of the Royal Newfoundland Constabulary (now Acting Sergeant, Criminal Intelligence) testifiedthat on 12 August 2019 he was assigned to the Major Crime Unit and responsible for investigating Jones’ complaint. Both Jones andJoshua Druken were interviewed and photo lineups were arranged in an effort to identify three[2] other possible suspects (other thanHutchings).

No other suspects were ever identified, however, and no charges laid. After some communication with Hutchings in aneffort to have him come to the police station, a warrant was eventually issued on 26 August 2019 for his arrest. [13] While not obliged to do so, Hutchings testified in his defence that the case was one of mistaken identity, and denied anyinvolvement in the alleged break and enter of 81A Neptune Road or the robbery of Jones. Rather, according to Hutchings he was at hisparents’ camper on the Witless Bay Line the entire time, a 45 minute drive from St. John’s.

Hutchings testified that he does not own avehicle and that he had been driven there by his sister-in-law, Alice Conway, on the Friday prior to August 12th (the 9th) and did notreturn until the following Wednesday. At the time, he was estranged from his girlfriend and went looking for a place to get away. Inaddition, he was in the process of renovating another camper trailer as a birthday surprise for his mother.

At the time there were otherunidentified persons present in the area, at their respective trailers. [14] Cell phone reception was spotty, but according to Hutchings he began receiving Facebook messages regarding his allegedinvolvement in the robbery of Jones. Indeed, one such message was from Jones himself, who accused him of the robbery and demandedhis father’s ring back. Hutchings testified that he replied with a question mark as he did not know what Jones was talking about. Jonesresponded with words to the effect that the cops were called and he (Hutchings) was going to jail.

At this point he stopped the exchange,as Jones had the wrong person. [15] Hutchings presented in Court as 27 years old, with a bald head and teardrop tattoo on his right cheek. He also has a tattoo onthe left side of his neck and heavily tattooed hands. According to Hutchings, the majority of his tattoos date from 2015, while theteardrop tattoo is older, in memory of a departed friend. [16] Hutchings acknowledged that he had met Jones in the past, briefly at his grandfather’s funeral several years ago, when hestepped outside and asked for a cigarette.

Shortly thereafter Jones asked Hutchings to be his “friend” on Facebook and he accepted. According to Hutchings, he may have run into Jones on another occasion but had no specific recollection of doing so. At the time of thefuneral Jones had been dating his cousin. [17] Hutchings’ sister-in-law, Alice Conway, also testified for the defence. Conway is a fulltime mother with three small children,the youngest of which, a daughter, was born on 1 August 2019.

Conway initially testified that when her daughter was “almost twoweeks old” she had occasion to drive Hutchings to his parents’ camper trailer on the Witless Bay Line. She recalled doing so on a Fridayand picking up Hutchings the following Wednesday. However, when shown a calendar of the period, she thought that she droppedHutchings off on Friday, the 9th of August, and picked him up the following week. Conway did not stay at the Witless Bay Line overthe weekend and could not attest to Hutchings’ whereabouts on the 12th. analysis [18] Jones appeared as a most reluctant witness.

When first asked to identify Hutchings he sought, and was granted, a briefadjournment. That said, it would be folly for the Court to speculate on the reason(

s) for this reluctance. At the end of the day, I amsatisfied that Jones nevertheless answered the questions asked of him candidly and without embellishment. Nor did his initial reluctancecause him to be evasive. I found him to be both credible and reliable in relating the events of 12 August 2019, as he perceived them atthe time. [19] Based on Jones’ testimony and the physical evidence I am satisfied beyond a reasonable doubt that on 12 August 2019 Joneswas the victim of a break and enter into his apartment at 81A Neptune Road, St.

John’s, and that his father’s graduation ring was stolenby one of the perpetrators. Fortunately, it was eventually returned. [20] In addition to Jones’ evidence, the break and enter is corroborated by the physical evidence. Notably, photographs of thebasement door which show it lying on the couch opposite where it had hung in the entrance. The glass in the door window is smashedand a single door hinge remains attached to the door frame. The door’s deadbolt remains in the locked position. Clearly, some forcewould be required to dislodge the door from its casing while locked in that manner.

While it is theoretically possible that Jones, or otherswith his consent, broke the door down, I accept the evidence of Jones that it was kicked in by an intruder, or intruders, into hisapartment. [21] While it has since been returned to him, I also accept Jones’ evidence that one of the perpetrators robbed him of the graduationring gifted to him by his father.[3] The theft of this ring was particularly troublesome for Jones due to its emotional value, promptinghim to send a Facebook message demanding its return. [22] The question remaining is one of identity.

Having established that there was a break and enter into Jones’ apartment and thathis ring was stolen, has the Crown proven beyond a reasonable doubt that it was Hutchings who did so? [23] The Courts must take great care when relying on eyewitness testimony to identify an accused. This is particularly the casewhere the identification is made by a stranger, the observation is fleeting, and there is no corroborative or other evidence to support apositive identification (R. v. Ryan, 2011 NLCA 53, at para. 22). [24] In R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, a case concerning videotape evidence, Cory J. identifiedthis concern and listed several factors to be considered in evaluating eyewitness evidence (at paragraph 19) (as also quoted with approvalin Ryan at paragraph 23): 19. Thus the importance and usefulness of videotapes has been recognized. This is as it should be. The courts have long recognized

the frailties of identification evidence given by independent, honest and well meaning eyewitnesses. This recognized frailty served toemphasize the essential need to cross-examine eyewitnesses. So many factors come into play with the human identification witness. As aminimum it must be determined whether the witness was physically in a position to see the accused and, if so, whether that witness hadsound vision, good hearing, intelligence and the ability to communicate what was seen and heard. Did the witness have the ability tounderstand and recount what had been perceived? Did the witness have a sound memory?

What was the effect of fear or excitement onthe ability of the witness to perceive clearly and to later recount the events accurately? Did the witness have a bias or at least a biasedperception of the event or the parties involved? This foreshortened list of the frailties of eyewitness identification may serve as a basisfor considering the comparative strengths of videotape evidence. [25] In the present case, Jones’ identification of Hutchings was based on his purported recognition of him.

As our Court of Appealobserved in Ryan, depending on the circumstances, there can be an important distinction between identification of a stranger andrecognition (at paragraphs 25-28). 25. … Recognition is defined in the Oxford Dictionary as "identification of a thing or person from previous encounters orknowledge". It is an instinctual or human reaction to a circumstance. The case law recognizes a distinction between identifications basedon recognition and those made by a stranger to the person being identified. (See R. v. Aburto, 2008 BCCA 78 (B.C. C.A.); R. v. Bardales(1995), (BC CA), 101 C.C.C. (3d) 289 (B.C.

C.A.), aff'd, (SCC), [1996] 2 S.C.R. 461 (S.C.C.); andR. v. Pitt (1996), (NB CA), 109 C.C.C. (3d) 488 (N.B. C.A.), at 500.) 26. Another British Columbia case, R. v. Bob, 2008 BCCA 485 (B.C. C.A.), illustrates the point. In Bob, an accused bicycle thief wasconvicted on the strength of a police officer recognizing him from several previous dealings. Mr. Bob appealed, arguing the trial judgeerred in finding that the police officer's identification of him was reliable given the particular circumstances and the well known frailtiesof eyewitness identifications.

In dismissing the appeal, Huddart J.A. commented on the difference between recognition eyewitnessidentifications and stranger eyewitness identifications at paragraph 13: The difficulty he [Mr. Bob] faces, however, is that this was a case of recognition, rather than identification. There is a significantdifference between cases in which a witness is asked to identify a stranger never seen by him before the offence, and cases in which awitness recognizes a person previously known to her.

While caution must still be taken to ensure that the evidence is sufficient to proveidentity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence: ... 27. In Aburto, the same court described the distinction at paragraphs 21 and 23: In this case, however, the witness was not being asked to identify a person who was a complete stranger to her prior to the commission ofthe offence .... . . . . The issue is therefore not really one of identification. The issue is whether the circumstances at the time of the offence were such thatMs.

Neville could reliably recognize the appellant. The distinction between cases of eyewitness identification of a person seen for thefirst time and cases where the witness recognizes someone previously known to them is well-discussed in the case authorities: ... 28. All eyewitness identification evidence is subject to reliability assessment, although reliability may be easier to achieve inrecognition cases.

A court must always consider the circumstances surrounding a witness' identification of an accused, which inrecognition cases would indicate the nature and degree of past interaction between the witness and the accused. In this regard, thecomment of Rowe J.A. at paragraph 71 of Russell is apt: In many cases, such [eyewitness] identification is entirely reliable, in others, it is not.

Like much else, it is specific to the facts of eachcase. [26] For his part, Hutchings testified that he was the victim of mistaken identity, as in fact he had spent the entire time at the camperdoing renovations in anticipation of his mother’s birthday in September. It is not for Hutchings to prove his innocence. However, if Ibelieve his evidence I must obviously find him not guilty (R. v. W.(D), (SCC), [1991] 1 S.C.R. 742 and the analysis needproceed no further. [27] That said, I did not find Hutchings to be a credible witness and, simply put, I do not believe him.

I conclude that his story wasconcocted out of half-truths in an effort to distance himself from the scene of the crime. I accept that he may have been at his parents’trailer, that he may have done renovation work there, and it is even possible that he was dropped off by Conway on Friday the 9th. I do

not believe his evidence, however, that he was at the trailer for the entirety of the day on August 12th. Nor is his evidence, taken alone, such as to give rise to a reasonable doubt as to his guilt. [ 28 ] The question thus remaining is whether I am nevertheless left with a reasonable doubt taking Hutchings’ evidence into account together with the evidence as a whole that I do accept, bearing in mind that the onus of proof, as always, rests with the Crown.

In other words, the question is not who to believe, Hutchings or Jones, but rather whether on the whole of the evidence the Crown has proven Hutchings’ identity beyond a reasonable doubt ( R. v. W.(D. )). [ 29 ] I found Conway to be a credible witness and accept her evidence that she drove Hutchings to his parents’ camper on the Witless Bay Line and picked him up again a few days later.

Her evidence of when she did so was equivocal, however, whether this was the Friday prior to the 12th of August, or another time. [ 30 ] Conway testified that her youngest child was born on 1 August 2019, so of this date we can be relatively confident. Initially she testified that she drove Hutchings on a Friday, “a couple of weeks after”, when the “baby was almost two weeks old.” This brings us to close to Friday, the 16th of August, after the date of the alleged break and enter.

When cross-examined on the point and shown a calendar, Conway re-evaluated her dates and thought that she drove Hutchings on Friday the 9th of August (a little more than one week after her daughter was born). [ 31 ] In any event, by all accounts Conway did not stick around and, as a consequence she could not attest to Hutchings’ whereabouts on August 12th. Witless Bay is a 45-minute drive from St. John’s, such that Neptune Road was well within reach by someone with a car. It will be recalled that according to Jones, Hutchings was not alone and arrived in an orange hatchback.

I conclude that Hutchings’ “alibi” evidence is wanting and not such as to leave me with a reasonable doubt as to where he was on the 12th of August. [ 32 ] Jones claimed to recognize Hutchings from a couple of encounters at a funeral home over several days. The encounters were brief, less than five minutes, and occurred some two years prior to the alleged break and enter. However, Jones correctly recalled from these encounters that Hutchings was bald and had a teardrop tattoo on his cheek.

Hutchings did not testify as to when he became bald, but acknowledged that his teardrop tattoo predated the funeral home encounter. [ 33 ] For his part, Hutchings acknowledged meeting with Jones at the funeral home, when Hutchings stepped outside and asked Jones for a cigarette. He could not recall a second meeting but minimized the nature of the encounter, describing it as very brief. Regardless, Hutchings was comfortable in asking Jones for a cigarette, and the encounter was such that thereafter the two became Facebook “friends”.

Hutchings agreed that at the time Jones was dating his cousin. [ 34 ] According to Jones, he next encountered Hutchings on the morning of 12 August 2019 when he came to Neptune Road, inquiring if anyone was home upstairs. Jones maintained that Hutchings came several times that day, prior to returning with others to smash a window and to kick his apartment door in. [ 35 ] His final encounter with Hutchings was during the break and enter. According to Jones, he looked out the door window to see Hutchings emerging from a vehicle carrying what looked like a firearm. He then locked the deadbolt on the apartment door.

After the intruders entered he was ordered by Hutchings to lie on the floor. Hutchings asked if anyone was home upstairs and then proceeded to take his father’s graduation ring. [ 36 ] Shortly following the alleged robbery, Jones sent a Facebook message to Hutchings demanding return of the ring. Hutchings claims to have been confused by this message. [ 37 ] On the whole of the foregoing evidence I am satisfied beyond a reasonable doubt that Hutchings was one of the individuals who broke into 81A Neptune Road, and in particular, was the individual who robbed Jones of his father’s ring.

I reach this conclusion for the following reasons. [ 38 ] The within case brings to the fore the distinction between identification evidence and recognition. I am satisfied that Jones in fact recognized Hutchings from his previous encounter(

s) with him at the funeral home and notably, on the morning of the break and enter when Hutchings came asking if the tenants were home upstairs. [ 39 ] Despite his apparent reluctance to testify, when he did so I found Jones’ evidence to be both credible and reliable. At no point was he evasive or did he seek to embellish his recognition of Hutchings. Not once, but twice, he testified that he was 100% confident that Hutchings was one of those who broke into his apartment, and the individual who stole his father’s ring. He did not resile from this evidence during cross-examination.

Rather, when it was suggested to him that he made the whole thing up his response was incredulous, “how is that possible?” [ 40 ] Jones’ initial identification of Hutchings was based on his recognition of him from the funeral encounter. By all accounts that meeting was cordial, with Hutchings asking for a cigarette and the two becoming Facebook “friends”. The circumstance was such that Jones’ perception at the time was not clouded by fear or excitement.

While some years prior to the break and enter, Jones could correctly recall that Hutchings was bald and had a teardrop tattoo on his cheek. [ 41 ] While the teardrop tattoo might be regarded as a distinguishing feature, such features are not required for recognition ( R. v. Downey , 2018 NSCA 33 at paragraphs 65-66 ).

That said, while no doubt there are other bald individuals with such a tattoo, such that these distinguishing features are not determinative, they are nevertheless evidence supporting the veracity of Jones recognition of Hutchings. [ 42 ] Jones testified that he next met with Hutchings outside his apartment on Neptune Road during the morning of 12 August 2019. I accept this evidence. This encounter is notable, for it occurred on the same day as the break and enter, in circumstances which, unlike the break and enter, were not clouded by emotion.

The individual with the bald head and teardrop tattoo who showed up asking if the tenants were home upstairs was the same person with whom Jones had shared a cigarette some years prior.

[ 43 ] Finally, Conway’s “alibi” evidence, while credibly given, either taken alone or in concert with Hutchings’ evidence, is not such as to raise a reasonable doubt regarding the veracity of Jones’ recognition of Hutchings. disposition [ 44 ] For the foregoing reasons I am satisfied beyond a reasonable doubt that Hutchings is guilty of break and enter into 81A Neptune Road on 12 August 2019 and the robbery of Nathan Jones. Convictions will enter on both counts. _____________________________ Donald H. Burrage Justice