R. v. Farrell, 2021 NLSC 175

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Farrell , 2021 NLSC 175 Date : December 21, 2021 Docket : 202006g0099 Her Majesty The Queen v. Anthony Cyril Farrell Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: November 15-19, 2021 November 22-23, 2021 December 21, 2021

Summary: Following trial, the accused was found guilty of four charges related to a break in at a lounge in January 2020, including possession of money stolen from the ATM. He was acquitted of a charge of conspiracy related to the break in and of four other charges related to a break in at another business in March 2020. Appearances:

Alison J. Manning Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Villaroman, 2016 SCC 33; R. v. Gagnon, 2006 SCC 17; R. v. Neary, 2000 NFCA 22; R. v. Laboucan,2010 SCC 12; R. v. H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.); R. v. K.P., 2019NLCA 37; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. J.H.S., 2008 SCC 30; R. v. Dinardo, 2008 SCC 24; R. v.Vuradin, 2013 SCC 38; R. v. Cleghorn, (SCC), [1995] 3 S.C.R. 175; R. v. Ford (1993), (BC CA), 23B.C.A.C. 50, 78 C.C.C. (3d) 481; R. v.

Noseworthy, 2018 NCLA 69; R. v. Clarke, 2020 NLSC 86; R. v. Root, 2008 ONCA 869, leave toappeal refused, [2009] S.C.C.A. No. 282; R. v. J.F., 2013 SCC 12 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] Mr. Farrell is charged with nine offences pursuant to the Criminal Code, R.S.C. 1985, c. C-46 related to two break and enters,one at JJ Billiards and Lounge in Salt Pond, Newfoundland and Labrador on January 13, 2020 and one at Admirals Galley and Keg inMarystown, Newfoundland and Labrador on March 2, 2020.

There is no doubt that break and enters occurred on the dates alleged. Thecentral issue for me to decide for both incidents is identity; specifically, whether the Crown has proven beyond a reasonable doubt thatMr. Farrell committed the offences. Overview of the break and entry at JJ Billiards [2] JJ Billiards is a pool house and lounge. At 1:37 a.m. on January 13, 2020 the security alarm was triggered. The RoyalCanadian Mounted Police (RCMP) were notified and responded. Cst. Bradley Layman was the first on the scene at 1:55 a.m. Shortlyafter his arrival, he received a radio call from Cst.

Gilbert Hiscock, advising that he had stopped a car with Shane Murphy and AnthonyFarrell in it, approximately 1.5 or 2 km away. Among other things in the car were wire cutters with snow on them and a pry bar. [3] Both men were arrested and taken to the RCMP detachment in Marystown. Search warrants were obtained for the car and twocell phones. One cell phone was found on the car dashboard and the other was found in Mr. Farrell’s pocket. Evidence seized includedthe pry bar and wire cutters, $4360 in cash found on Mr.

Farrell’s person, a pair of sneakers he was observed removing in the car, and theclothes he was wearing. [4] Later investigation of JJ Billiards revealed that entry had been gained through the back door, which was open and damaged.The power meter had been torn from its socket and a wire cut. Inside, items were damaged and out of place. Significantly, an AutomaticTeller Machine (ATM) had been opened and cash was missing. [5] The Crown called a number of police and civilian fact witnesses, including Mr. Murphy.

The Crown also entered securitycamera footage from two nearby businesses. [6] The Crown called three expert witnesses. One did forensic testing and analysis on paint and polymer samples from the reardoor, the ATM, and the pry bar. He found matches as detailed in his evidence. Another collected footwear impressions from the scenethat she compared to the sneakers seized from Mr. Farrell. She found that Mr. Farrell’s sneakers were a possible source of theimpressions. Finally, the third expert analyzed the cellphones, which he found to have been communicating with each other in the daysbefore the break in. [7] Mr.

Farrell called two witnesses who gave evidence relevant to the break in at JJ Billiards. One was a police officer whotestified to Mr. Farrell being lawfully in possession of $4990 in cash in late November 2019. The other was Matthew Rowsell, whoprovided an alibi for Mr. Farrell at the time of the break and enter. [8] For the reasons that follow, I have found Mr. Farrell guilty of the charges related to the break and enter into JJ Billiards, withthe exception of the charge of conspiracy.

Overview of the break and entry at Admirals Galley [9] At 6:15 a.m. on March 2, 2020, the security alarm was triggered at Admirals Galley. The business owner drove to therestaurant and saw footprints in the snow leading into the back door of the building, which was ajar. He alerted the RCMP. Before policearrived, whomever was in the building had left. [10] Inside it was evident that someone had attempted to break into the ATM. Although significant damaged was done, no moneyhad been taken.

On top of a speaker close to the ATM, police found a cellphone. [11] Analysis of footprint impressions and fingerprints did not reveal any useful information. The cellphone analysis concluded thatthe phone belonged to Mr. Farrell. It also revealed that the phone had been used after the restaurant had been closed for the night. Thecellphone had not been used in the hour and fifteen minutes before the alarm at Admirals Galley was triggered. The phone could havebeen used by anyone in possession of it. [12] For the reasons that follow, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr.

Farrell was theperson responsible for the break in at Admirals Galley. As a result, I have found him not guilty of the related charges. LAW Law related to circumstantial evidence [13] For both break and enters, the Crown’s case depends on circumstantial evidence. [14] In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada clarified that where the Crown’s case depends oncircumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guiltwas the only reasonable conclusion available based on the totality of the evidence (para. 55).

In assessing such a case, the trier of factmust consider the evidence, and any gaps in the evidence, that may result in inferences other than guilt. But those inferences must bereasonable and based on logic and experience applied to the evidence or the absence of evidence, not speculative or just possible (paras.36, 37 and 42). Circumstantial evidence does not have to totally exclude other conceivable inferences (para. 42). Villaroman makes clearthat it is for the trier of fact to draw the line that separates reasonable doubt from speculation (para. 71).

Law related to the credibility and reliability of witnesses [15] The believability of a witness’s evidence involves both its truthfulness and its accuracy. We often use the term “credibility” torefer to an assessment of a witness’s truthfulness or sincerity, and the term “reliability” to refer to a witness’s ability to observe, recall,and recount events accurately. [16] In R. v. Gagnon, 2006 SCC 17, the Supreme Court of Canada stated at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [17] In assessing a witness’s testimony, a judge has to consider a number of factors, including: a. The witness’s ability to observe or experience events; b. The witness’s ability to recall and describe what happened accurately; c.

Whether the witness’s evidence changed during direct examination and cross-examination or whether it is inconsistent withstatements the witness made on previous occasions; d. Whether the witness has previously been untruthful in court or committed crimes of dishonesty; e. Whether the witness’s evidence is consistent (or not) with other independent evidence, which is accepted by the court[1]; f. Whether the witness has any motivation to be untruthful, although in the case of an accused witness the trial judge must not makethe impermissible assumption that an accused will lie to secure an acquittal[2]; g.

Whether the witness’s evidence makes sense as a matter of logic, human experience and common sense; and h. The attitude and demeanour of the witness. For example, the court may assess whether a witness appears forthright or evasive,overly confident or overly vague. In assessing attitude and demeanour, however, a judge must be careful and consider all possibleexplanations for the witness’s presentation, including individual and cultural factors.

Demeanour alone, is not a sufficient basis toconvict an accused where the allegations are credibly denied or there is other contradictory evidence[3]. [18] In assessing a witness’s testimony, a judge may accept all, some or none of their evidence (R. v. K.P., 2019 NLCA 37, atparagraphs 42 and 47). Law related to the evidence of an accused person [19] In R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 the Supreme Court of Canada set out a three-step framework forthe trier of fact analyzing whether an accused who testifies on their own behalf is guilty beyond a reasonable doubt:

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. [20] In R. v.

J.H.S., 2008 SCC 30, the Supreme Court of Canada added another prong to this instruction, namely, if the trier of factis unable to decide whom to believe, the accused is entitled to an acquittal. A lack of credibility on the part of the accused does notequate to proof of their guilt beyond a reasonable doubt. [21] In R. v. Dinardo, [2008] SCC 24, the Supreme Court of Canada made clear that the W.(D.) framework does not require aformalistic or rigid approach to its application.

Despite its wording, the framework applies not only to the accused’s testimony but ratherto the impact of all exculpatory evidence, in the context of all of the evidence. The trier of fact must consider whether the exculpatoryevidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to guilt. [22] In R. v. Vuradin, 2013 SCC 38, the Supreme Court of Canada underscored the principle that assessing the evidence at acriminal trial does not consist of choosing between an accused’s evidence and the Crown’s evidence.

An accused’s evidence cannot beassessed in a vacuum, but rather it must be assessed as part of the evidence as a whole, keeping in mind that the onus of proof nevershifts to an accused. Law related to alibi evidence [23] An accused has a constitutional right to remain silent throughout the criminal process prior to conviction. One qualification tothat right arises where an accused chooses to advance an alibi defence. The law was summarized by the Supreme Court of Canada in R.v.

Cleghorn, (SCC), [1995] 3 S.C.R. 175 at paragraphs 3 and 4: At issue in this appeal is whether the alibi defence raised by the accused at trial was properly disclosed to the Crown. As outlined by mycolleague, proper disclosure of an alibi has two components: adequacy and timeliness. This principle was recently reiterated in R. v.Letourneau (1994), (BC CA), 87 C.C.C. (3d) 481 (B.C.C.A.), where Cumming J.A. wrote for a unanimous court at p.532: It is settled law that disclosure of a defence of alibi should meet two requirements: (

a) it should be given in sufficient time to permit the authorities to investigate: see R. v. Mahoney, supra, at p. 387, and R. v.Dunbar and Logan (1982), (ON CA), 68 C.C.C. (2d) 13 at pp. 62-3 ... (Ont. C.A.); (

b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate: see R. v. Ford (1993), (BC CA), 78 C.C.C. (3d) 481 at pp. 504-5 ... (B.C.C.A.). Failure to give notice of alibi does not vitiate the defence, although it may result in a lessening of the weight that the trier of fact willaccord it .... As stated above, the consequence of a failure to disclose properly an alibi is that the trier of fact may draw an adverse inference whenweighing the alibi evidence heard at trial (Russell v. The King (1936), (SCC), 67 C.C.C. 28 (S.C.C.), at p. 32).

However, improper disclosure can only weaken alibi evidence; it cannot exclude the alibi. [24] Although he was writing in dissent in Cleghorn, the following words from Major J. at paragraph 32 are consistent with themajority, and with R. v. Ford (1993), (BC CA), 23 B.C.A.C. 50, 78 C.C.C. (3d) 481, cited by the majority: The disclosure of an alibi should be given with sufficient particularity to enable the authorities to meaningfullyinvestigate: see Ford, supra, at p. 505.

In my opinion, three pieces of information are necessary for sufficient disclosure of an alibidefence: a statement that the accused was not present at location of the crime when it was committed, the whereabouts of the accused atthat time and the names of any witnesses to the alibi: see Mahoney, supra, and also R. v. Laverty (1977), (ONCA), 35 C.C.C. (2d) 151 (Ont. C.A.). CROWN EVIDENCE RELATED TO JJ BILLIARDS Credibility and reliability of the police fact witnesses [25] The Crown called seven non-expert RCMP officers involved in this file. There was considerable overlap in their testimony.

These officers all gave consistent evidence and their credibility was not undermined by cross-examination. I found all of the officers to be credible and reliable witnesses. Based on their testimony, which I accepted, I have made findings of fact related to this event that I will describe below. Accepted evidence of the police fact witnesses [ 26 ] The alarm system at JJ Billiards at 114 Main St. in Burin, Newfoundland and Labrador was triggered at 1:37 a.m. on January 13, 2020 and a call was received at the RCMP detachment in Marystown at 1:42 a.m. Several officers responded. [ 27 ] Cst. B.

Layman was the first to arrive on the scene at 1:55 a.m. It was snowing heavily and he did not see any other vehicles on the way. He did not have his vehicle’s emergency lights activated, but he had the high beams and “take down” lights on. Looking through the front door and window of the building with his flashlight, he could see a damaged ATM. He radioed other RCMP members to advise them. Cst. B. Layman saw tire tracks on the left side of the building and tire tracks and footprints around the back of the building. [ 28 ] Cst. Hiscock also responded to the call.

While he was on route to the scene, he saw a vehicle coming toward him. He activated his lights and stopped it. He saw Mr. Murphy driving and Mr. Farrell in the passenger seat. Mr. Murphy was dressed in black, and Mr. Farrell was dressed in white and eating a pack of salt and vinegar chips. Cst. Hiscock made note of the chips because it was 2 a.m. and everything in the Burin area was closed. [ 29 ] Cst. Hiscock spoke with both men. While doing so, he saw a pry bar and wire cutters with fresh snow on them in the back seat of the car. It was not cold in the car. Cst.

Hiscock advised the men that he saw the wire cutters, which he called bolt cutters. In response, Mr. Farrell reached into the back seat, grabbed the wire cutters and said, “no, they are wire cutters”. He then lodged them back on the seat again. [ 30 ] Cst. Hiscock advised the men that there had been a break and enter at JJ Billiards and he detained him. When he advised them that they were detained, Mr. Murphy said that he was not part of any break and enter and Mr. Farrell said he was at Chanasie Gaudon’s place and that she could be contacted to confirm. [ 31 ] Cst.

Hiscock radioed the other RCMP officers to advise them of the car stop. As a result, Cst. B. Layman left JJ Billiards to meet Cst. Hiscock, who was about 1.5 km to 2 km away. [ 32 ] Cst. Hiscock waited until Cst. B. Layman arrived to arrest the men. Cst. B. Layman dealt with Mr. Farrell and he dealt with Mr. Murphy until Cst. Graeme Brown arrived and took over from him. Cst. Hiscock then proceeded to JJ Billiards. [ 33 ] When Cst. B. Layman arrived, Mr. Murphy and Mr. Farrell were still in the car. Cst. B. Layman went to the front passenger’s door to arrest Mr. Farrell.

He tried to open the door but it was locked. He saw Mr. Farrell reaching for something on the floor. Cst. B. Layman used his flashlight and saw that Mr. Farrell was changing his shoes. Mr. Farrell then unlocked the door and Cst. B. Layman arrested him. [ 34 ] During the search incidental to arrest, Cst. B. Layman believed that Mr. Farrell was trying to keep him away from his front jacket pocket. When Cst. B. Layman opened that pocket, he found cash and a cellphone. Cst. B. Layman read Mr.

Farrell the police warning and right to counsel and transported him to the RCMP detachment at Marystown. [ 35 ] Before leaving the scene, Cst. B. Layman took photographs that were entered into evidence. In the photographs, he identified black high-top sneakers located on the front, passenger-seat floor of the car as those that he saw Mr. Farrell change out of. He also identified the pry bar and wire cutters in the back seat area of the car. He pointed out snow on the wire cutters that was visible in the photographs.

He testified that he found this odd because the car was warm inside so that if they had been there any time, he believed the snow would have melted. [ 36 ] Cst. B. Layman searched Mr. Farrell further after they arrived at the detachment. He found more cash gripped in Mr. Farrell’s right hand and in his pant pocket. In total, $4360 was found: $3660 in Mr. Farrell’s jacket pocket, $640 in his hand, and $60 in his pant pocket. All of the money was in twenty-dollar bills. Cst. B.

Layman described the bills as fairly new, crisp, and all facing the same way when found, meaning that the head of the Queen was oriented the same way and the clear windows on the polymer bills were lined up. [ 37 ] When he was arrested, Mr. Farrell’s outer layer of clothing was a white Columbia brand jacket and white Under Armor brand softball pants. [ 38 ] Cst. Kylea Greentree escorted the car back to the secure bay at the RCMP detachment. Mr. Murphy was the registered owner of the car, which was a silver-grey Honda Fit.

It was a four-door, compact hatchback. [ 39 ] Search warrants were obtained and executed for the car and for two cellphones seized, one from Mr. Farrell’s pocket (PE04) and one located on the dashboard of the car (PE32). [ 40 ] Photographs taken during the search of the car by Cst. Christopher Mitchell were entered as evidence. The rear seat behind the driver was in an upright position. The rear seat behind the front passenger was folded down. [ 41 ] Cst. Mitchell seized items of interest, including: a. the wire cutters, found hanging over the back of the rear seat, towards the centre of the car. b.

The pry bar, found on the back seat. It is long and painted yellow but the paint is well worn. c. A homemade facemask, found on the folded down rear seat. It looked to be a sleeve of a sweater with holes cut in it for eyes and

mouth. d. The high-top sneakers identified by Cst. B. Layman as having been worn by Mr. Farrell. Cst. Mitchell testified that they were soaking wet. e. The cellphone, found on the dashboard. [ 42 ] There were a lot of garbage and personal items in the car. Cst. Mitchell identified other items visible in the photographs. There were a number of other tools, including a hammer, screwdrivers, and pliers. There were also a number of articles of clothing, including two pairs of work-type gloves and a balaclava that covered all but the eye area of the wearer.

There was an open package of Lay’s salt and vinegar chips located on the console between the front driver and passenger seats, which Cst. Hiscock identified as those that Mr. Farrell was eating. [ 43 ] Cst. Mitchell took a sample of yellow paint from the pry bar. He did not determine who owned the items found in the car. [ 44 ] Upon arriving at JJ Billiards after the arrest, Cst. Hiscock examined the scene and took photographs, which were entered as evidence.

He observed footprints in the snow behind the building, leading from the back of a hair salon next to JJ Billiards, down a bank to a brook, and then back up the bank towards the back deck of JJ Billiards. He also saw footprints between the JJ Billiards building and a chain link fence that separates it from a neighboring property, Pike’s Building and Supplies. Those footprints led towards a parking lot, which opened on to the main road in Burin. [ 45 ] The rear door of JJ Billiards, which opened on to the back deck, was open and, in the area next to the deadbolt, marked with pry marks and yellow paint.

The power meter, attached to the back of the building in the area of the deck, was pulled out of its socket and lying on the deck. A wire was hanging down from the meter base and looked like it had been cut. [ 46 ] There was no power inside the building, so Cst. Hiscock used his flashlight to observe and photograph. In the bar area, the ATM was damaged and the cash box from inside it was on the floor. Behind the bar, the cash register drawer was open and the cash drawer was on the floor, as was a monitor used for drink orders. The VLT machines were opened, although Cst.

Hiscock later learned that they had been left that way by the owners. [ 47 ] Neither Cst. Hiscock nor Cst. B. Layman heard the name Matthew Rowsell associated with this file until the week before trial began, when Cst. B. Layman received an email. As a result of that email, he took a statement from Mr. Rowsell and spoke to Mr. Rowsell’s mother. Cst. Hiscock testified that Lewyn’s Cove, where Mr. Rowsell lives, is 2 to 3 minutes from JJ Billiards by car. [ 48 ] On cross-examination, Cst. Mitchell confirmed that on November 26, 2019 he had stopped and arrested Mr. Farrell on an unrelated matter. Cst.

Darren Coady testified for the defence about this incident also. His evidence, which is reviewed below, was consistent with Cst. Mitchell’s, but more detailed. Evidence of security camera footage [ 49 ] Cst. Gavin Layman collected security camera footage from two nearby businesses: Pike’s Grocery and Pike’s Building and Supplies. [ 50 ] Pike’s Grocery is also on Main Road, but further south than JJ Billiards, towards Burin. There were three cameras at Pike’s Grocery that captured traffic on Main Road.

In recording the times below, I have not included seconds. [ 51 ] At 1:18 a.m. on January 13, 2020, all three cameras captured a vehicle going south on Main Road, that is, coming from the direction of Marystown and JJ Billiards and going towards Burin. [ 52 ] At 1:20 a.m. on January 13, 2020, all three cameras captured a vehicle, which looked to be the same vehicle, going north on Main Road, in the direction of Marystown and JJ Billiards. [ 53 ] The vehicle caught on the cameras is a hatchback style, and grey-coloured. Cst. G.

Layman testified that in his opinion the vehicle in both sets of videos is the same make, model and year and that it matches the car driven by Shane Murphy. Cst. G. Layman testified that he was familiar with Mr. Murphy’s car. [ 54 ] Pike’s Building and Supplies is next door to JJ Billiards and located at the intersection of Main Road and Eagle Road. It had one security camera. When Cst. G. Layman collected the footage, he noted that the time stamp on the camera footage was 11 hours and 40 minutes ahead of the actual time.

In describing the images captured on this video, I have made this adjustment and included the approximate actual time in brackets. I have not included seconds, so times may be off by up to a minute. [ 55 ] At 12:58 p.m. (1:18 a.m.) a grey car is seen travelling south on Main Road towards Burin. At 1:03 p.m. (1:23 a.m.), it is seen traveling north on Main Road. Cst. G. Layman noted that the time going south aligns with the image captured at 1:18 a.m. on the Pike’s Grocery Building, but the time going north is about two and half minutes later. This suggested to Cst. G.

Layman that the car stopped or was delayed for about two and a half minutes in between the two locations it was recorded going north. [ 56 ] At 1:33 p.m. (1:53 a.m.) the video captured a person travelling on foot in a northerly direction, away from JJ Billiards, along a fence. The person appeared to be in light-coloured clothing. The person was out of view for a short period and then visible again. The person appeared to be running. The person then went down a bank into what Cst. G. Layman testified was a parking lot.

A few seconds later at 1:35 p.m. (1:55 a.m.) a police vehicle with its take down lights on was seen traveling south on Main Road toward JJ Billiards. Cst. G. Layman testified that he believed this was Cst. B. Layman arriving on the scene. [ 57 ] At 1:41 p.m. (2:01 a.m.), the same police vehicle is seen going north on Main Road. Again, Cst. G. Layman believed this to be Cst. B. Layman leaving the scene. The last activity of note is at 2:04 p.m. (2:24 a.m.) when a police pick-up truck is seen travelling south

and then slowing down to turn in towards JJ Billiards. [ 58 ] On cross-examination, Cst. G. Layman confirmed that it was not possible to make out any features of the person in the video and that it was his opinion that they appeared to be wearing lighter clothing. He also confirmed that he could not see a licence plate for the grey hatch-back and thus could not be one-hundred percent sure it was Mr. Murphy’s, but based on its shape and lights, he believed it to be the same make, model and year as Mr. Murphy’s car. Evidence of lay witnesses Wanda Barron (owner, JJ Billiards) [ 59 ] Ms.

Barron owns JJ Billiards with her husband. She was at the business the night of Sunday, January 12, 2020 until around 6:30 or 7:30 p.m. Jody Oake was the only staff member working that night. [ 60 ] Ms. Barron confirmed that the business owns the ATM and, on the night in question, she loaded cash in the machine. According to her paperwork, there was $4980 in the ATM after she loaded it. She used all twenty dollar bills, most of which were new bills. Ms. Barron stated that she always lines up her bills in the same way before she puts them in the ATM.

In her words, she always puts her “heads” together, referring to the Queen’s head. [ 61 ] Ms. Barron confirmed that she received the call from the alarm company at around 1:40 a.m. on January 13, 2020. She was allowed to enter the building the next day. [ 62 ] Ms. Barron confirmed that the ATM was so damaged that it could not be salvaged and cost $3220 to replace. She confirmed the cash in the ATM was gone and she never got it back.

Because of the damage to the ATM, she could not get a tally of how much was withdrawn legitimately from the ATM that night after she loaded it. [ 63 ] She confirmed that the staff tracks inventory twice a day, at the end of each shift. From the inventory sheets, she confirmed that a bag of chips was missing. She could observed that a liquid, which she thought was liquor from the smell, was poured over the ATM but she did not know what it was because the bottle was gone. [ 64 ] Ms.

Barron testified that the back door had a deadbolt and a barrel bolt and was so damaged it had to be replaced, at a cost of $590 to $600. The security system keypad was destroyed and cupboards and drawers were opened and damaged. Ms. Barron confirmed that there was no money in the VLTs as they were emptied every night and their doors left open. A similar process was followed for the cash register. She also confirmed that Newfoundland Power, who provides power to the building, had to replace the meter on the back of the building, but there was no cost to her. [ 65 ] Ms. Barron knew Mr. Farrell as a bar customer.

On November 3, 2019, he won $2,582.50 on a VLT at JJ Billiards. Ms. Barron had e-mail transferred him $2000 and the bartender working that day gave him $582.50 in cash. Text messages between her and the bartender entered into evidence corroborated this testimony. [ 66 ] On cross-examination, Ms. Barron confirmed that JJ Billiards had been broken into about a year and a half before, when entry had been gained through a hole in the wall at the back of the building. She could not confirm if there was any damage to the back door before this night, but she said that there should not have been.

Finally, she confirmed that the money that she put into the ATM was money that came from the till, that is, it was currency in circulation. Jody Oake (bartender, JJ Billiards) [ 67 ] Ms. Oake worked as a bartender at JJ Billiards on the evening of January 12, 2020. Other than Ms. Barron’s being there earlier in the evening, she worked alone until close. Ms. Oake confirmed that there was a regular men’s dart league at the bar that night and a couple of people playing VLT machines. [ 68 ] Ms. Oake testified that there was not high traffic use of the ATM that evening.

She estimated that it was used between 6 and 12 times by VLT users and dart players. [ 69 ] She closed the bar at midnight and left at 12:30 or 12:40 a.m. She confirmed her closing routine. Money in the VLT machines and the cash register is removed and the deposits prepared. No money is left in the machines and the deposit bags are taken to a secure location. She confirmed that the cash out drawers of the VLTs and the cash register drawer were left open. [ 70 ] Ms.

Oake confirmed that she tracks inventory, such as chips and gum, either by counting at the beginning of her shift and tracking sales, or by counting at the end of the night. She said that before she leaves she stocks the fridges, wipes off the bar, and picks up any glasses and bottles. She does not do heavy cleaning at night. She testified that when she left, nothing was out of place and the power was on. She set the alarm and locked the doors before leaving. [ 71 ] Ms. Oake was shown photographs taken by Cst. Hiscock.

She confirmed that the damage and disorder seen in the photographs was not how she left the bar or the ATM. She confirmed a screwdriver found on the floor was not there when she left. [ 72 ] Ms. Oake testified that she was the only one behind the bar after Ms. Barron left. She testified that she wore knee high boots but also had rubbers with her because it was snowing and she knew she would have to shovel. [ 73 ] Ms. Oake did not know Mr. Farrell personally, but knew of him. He had been at the bar a couple of times before playing the VLTs. She recalled his last time at the bar was around January 2, 2020.

He was playing VLTs. She recalled him going out on the back step for a cigarette.

[ 74 ] On cross-examination, Ms. Oake confirmed that there was nothing unusual about Mr. Farrell visiting the bar or going to the back deck for a cigarette. She also confirmed that she did not mop the floor that night. She stated that the weather was snowy and that the floor was salty and wet. She confirmed that the area around the bar is a high traffic area. Jessica Osmond (bartender, 5 Dock Row) [ 75 ] On January 12, 2020, Ms. Osmond worked as a bartender at 5 Dock Row, a bar in Marystown. She testified it was a slow night. She could recall her customers that evening (there were few) and Mr.

Farrell was not one of them. Ms. Osmond was familiar with Mr. Farrell because she had previously seen him at the bar playing the VLT machines. She could not remember the last time before that night he had been in. She testified that sometimes he would come to the bar a couple of times a week. Chanasie Gaudon (friend of Mr. Farrell) [ 76 ] Ms. Gaudon described Mr. Farrell as a “pretty good” friend. She testified that on the night of January 12, 2020, into the morning of January 13, she was at home in Burin, with her infant daughter and the baby’s father. She testified that she had no contact with Mr.

Farrell during that time and that he was not at her house that night. She could not recall the last time she saw him previously, but thought it was probably a couple of weeks before. Shane Murphy (co-accused on separate Indictment) [ 77 ] Shane Murphy testified that he used to use the name Shane Brake, but no longer does. He knows Mr. Farrell from growing up in the same town and from working together in the construction and demolition business. Mr. Murphy testified that he would regularly give Mr. Farrell rides for pay. Mr. Farrell would call him when he needed a ride. If Mr. Farrell was playing VLTs, Mr.

Murphy would wait for him to finish. [ 78 ] On the night in question, Mr. Murphy testified that he left his home in Marystown when Mr. Farrell called him for a ride. He said he traveled through Creston South, up through Black Brook, towards Burin. He said that Mr. Farrell was leaving to walk from Chanasie Gaudon’s, and he was going to pick him up wherever he saw him. He said he picked Mr. Farrell up in Burin, near the Central Video store, and then turned around by a double bay garage there.

He said Central Video is about a 30 seconds drive from JJ Billiards, towards Burin (i.e. south). [ 79 ] He recalled it was late and stormy. He did not recall if he had brought Mr. Farrell to Burin earlier that day or not. He could not say if Mr. Farrell put anything in the car. He said that just he and Mr. Farrell were in his car that night. [ 80 ] Mr. Murphy said that they were headed home towards Marystown, when police stopped them in Black Brook and arrested them. [ 81 ] From photographs, Mr. Murphy identified the grey Honda Fit as his car.

He identified the wire cutters as ones he had borrowed from an employer to use in a demolition in 2019. He identified the pry bar as one that he borrowed from his employer to bend his fenders back in shape. He said he had not returned the tools, and that his car was full of tools, like a toolbox. [ 82 ] Mr. Murphy had no knowledge of the homemade mask found in his car. He identified the balaclava as his, which he used for various activities. He said the clothes in his car belonged to either him or Mr. Farrell. [ 83 ] Mr. Murphy identified the black high-top sneakers as coming from Mr. Farrell’s feet.

He testified that Mr. Farrell was changing them when the police pulled them over. He did not know where the shoes that Mr. Farrell was changing into came from. He said he had never seen them before. He confirmed that he was dressed in all black and that Mr. Farrell was dressed in all white. He did not know where the chips came from. [ 84 ] Mr. Murphy identified the cellphone seized from the car dashboard as his. [ 85 ] When asked about the fresh snow on the wire cutters, Mr. Murphy testified that he had used them to beat snow off the rocker panels and wheel wells of his car before he went to Burin. [ 86 ] Mr.

Murphy was cross-examined with respect to the testimony he had given about this night at his own trial. It was put to him that at his trial, he testified that he was in the Tim Horton’s parking lot in Marystown when Mr. Farrell called and that he had picked up Mr. Farrell and then taken him to Ms. Gaudon’s, who was not home, and then to Matthew Rowsell’s, where Mr. Farrell had looked at a skidoo. [ 87 ] When it was put to Mr. Murphy that these were different stories, he did not “necessarily” agree. He said he was “out and about” that night.

He said it was difficult to piece together the things that happened, and when they happened. He said Mr. Farrell had to go back to Ms. Gaudon’s to collect money. [ 88 ] He could not recall when he brought Mr. Farrell to Lewin’s Cove to see Mr. Rowsell. He said he forgot to mention it on his direct examination but he vaguely remembered bringing him there to look at a skidoo. He did not know Mr. Rowsell. He was adamant that when they went to Lewin’s Cove to look at the skidoo, there was no one else in the car with him and Mr. Farrell. He said he stayed pulled over on the side of the road and waited for Mr.

Farrell to return. He said he was there for 10 to 15 minutes, and not for half an hour. He was adamant that he did not leave. [ 89 ] Mr. Murphy could not recall when he last saw the pry bar in his car. He suggested that tools were sometimes stolen out of his car and then put back in. He agreed that he would have noticed Mr. Farrell getting into the car with the pry bar (it was large), so “guessed” that it had to be in the car when Mr. Farrell got in. He “did not have a clue” how paint from the ATM and door could have

gotten on the tool. [ 90 ] Mr. Murphy testified that it was about a 10 or 15 minute drive from Ms. Gaudon’s home to where he picked up Mr. Farrell. He could not explain how Mr. Farrell could have travelled that distance on foot in the time it took him to arrive by car from Marystown. [ 91 ] When it was put to Mr. Murphy that he was using Mr. Farrell as a scapegoat, he denied it. He said that he thought he was being used as Mr. Farrell’s scapegoat. [ 92 ] On redirect, Mr. Murphy said that he had parked on the side of the road because there was a lot of snow in Mr. Rowsell’s driveway.

Expert evidence of cellphone analysis [ 93 ] I qualified Dean Boyer to give expert evidence in forensic methodology, data

interpretation, and cell phone seizure and analysis. He presented two reports: one related to PE04 (seized from Mr. Farrell) and one related to PE32 (seized from the car dashboard). PE04, cellphone seized from Mr. Farrell [ 94 ] Mr. Boyer testified that this Motorola cell phone was assigned a phone number of 1-709-218-5038. This cell phone was locked with a swipe code that he could not bypass. As a result, he was unable to examine it further. PE32, cellphone seized from the car dashboard [ 95 ] Mr. Boyer testified that this Samsung cell phone was assigned a phone number of 1-709-276-0784.

He was able to acquire and analyze all data from this cell phone, including some data that had been deleted. [ 96 ] Mr. Boyer found 51 calls logged between the Samsung (PE32) and the Motorola (PE04) during the time period he analyzed. He testified that was between January 11 and 14 of 2020, but I note that the earliest call reported is from January 4 and there are a number before January 11. None of the calls was long. [ 97 ] Five of the calls were on the evening of January 12, 2020 from 5:52 p.m. to 11:04 p.m. Of those five, four of the calls lasted 40 seconds or less. The fifth was just over 2 minutes long.

On January 11, 2020, there were 11 calls between the two phones. [ 98 ] There was no texting between the two phones during this period. Four draft texts had been created in the Samsung but were unsent and had been deleted. [ 99 ] The Bluetooth device name assigned to the phone was “SHane Brake”. The email shanebentleyalex@gmail.com was associated with a number of accounts associated with the phone. [ 100 ] There were a number of texts on the phone exchanged with a phone number associated with “Shacara”. On January 7, 2020, “Shacara” texted, “”Tony with you?” The user of the Samsung responded, “Yup”.

There were a few more messages referencing “Tony” and Shacara’s need to talk with him. [ 101 ] On January 13, 2020 there was a text from someone who identified themselves as “Sarah” that read, “Hey Shane can you ask tony if he has the 50 dollars for me I need it now so I can get more bud”. This text was unanswered and marked “unread”. Expert evidence of footwear analysis [ 102 ] Cpl. Kelly Lee is a forensic examination specialist with the RCMP who examined and photographed the scene. I qualified Cpl.

Kelly Lee to give expert evidence in examination, identification, comparison and physical matching of footwear and footwear impressions. [ 103 ] Cpl. Lee arrived at JJ Billiards just before 4 p.m. on January 13, 2020. The power had been reconnected to the building, but no one had been inside. Cpl. Lee described the rear entry door as damaged and bowed. She took a paint sample from the door near the thumb latch, which was the area of greatest damage. [ 104 ] Inside, she smelled cleaning solutions, but when she got close to the damaged ATM she smelled what she identified as rum.

She could see wet staining on the carpet around the ATM. The cash box from the ATM was on the floor and a brown liquid had pooled on the top of it. It smelled like rum, so Cpl. Lee concluded that someone had poured rum over the damaged ATM, perhaps in an effort to defeat fingerprints or DNA. She observed an empty bottle of rum on the edge of the bar, close to the ATM. [ 105 ] Cpl. Lee could see yellow paint on some of the pry marks on the ATM.

She believed this was paint transfer from the tool used, so she took a sample of it. [ 106 ] Because the floors had not been mopped, a number of footwear impressions were visible in the salt and dirt on the floor. In the area behind the bar, which was in disarray, Cpl. Lee found a calendar on the floor, which she concluded had been hung on the wall. On the back of the calendar, there was a footwear imprint. She reasoned that this calendar had been knocked over during the break in, so she focused on this footwear impression and looked for others like it in the bar area. She found four. [ 107 ] Later, Cpl.

Lee inspected the footwear seized from Mr. Murphy and Mr. Farrell and compared it to the imprints. One pair looked to be of interest, the black high-top sneakers. When she opened the bag they were in, she immediately got a “boozy smell” from the shoes. They were still quite wet.

[ 108 ] The sneakers were a men’s size ten. The brand, G-Star Raw, was not familiar to Cpl. Lee, who testified that she deals with a lot of shoes. She Googled the brand and found that the sneakers came from a Dutch designer and were available at two retail locations in Canada (neither in Newfoundland and Labrador), and also on-line. [ 109 ] Cpl. Lee explained the identification process she followed in detail and her reports were entered into evidence.

She concluded that for all of the footwear impressions she identified at JJ Billiards, the one on the calendar and the four on the floor in the bar area, the seized sneakers were a “possible source” of the questioned impression, and therefore could have produced the impression. Other footwear with the same class characteristics observed in the impression were included in the population of possible sources. [ 110 ] Cpl. Lee explained her conclusion in more detail. “Class characteristics” are characteristics of a shoe impression that come from the manufacture.

She could confirm that the impressions matched a G-star Raw shoe of the same model as the seized sneakers. Because shoe manufacturers can use the same outsole for more than one size, for example, the outsole on a size 9.5 and a 10 might be the same, she could not confirm that the impressions were made by a size 10.

However, she could confirm that the impressions were made by a shoe with the same size outsole as the seized sneakers. [ 111 ] Because there were no characteristics visible on the impressions that were a result of the wearing or use of a particular pair of shoes, such as gum stuck to the bottom or damage to the outsole, Cpl. Lee could not conclude that this particular pair of G-star Raw sneakers made the impression. [ 112 ] On cross-examination, Cpl.

Lee confirmed that she could not say when the imprints were made and that, although she theorized that someone had stepped on the calendar during the break and enter, she could not confirm it. She also confirmed that although she could say that a shoe with the same pattern and size of outsole as the seized sneakers had made these impressions, she could not say that it was the seized sneakers that made them. [ 113 ] Cpl. Lee confirmed that the shoes were not DNA tested and that she did not recover any fingerprints or DNA samples from the scene.

Expert evidence of paint and polymer analysis [ 114 ] I qualified Jared Webster to give expert evidence in forensic examination, identification, comparison and physical matching of paints and polymers. [ 115 ] Mr. Webster analyzed the paint sample taken from the rear door, the paint sample taken from the ATM, the paint sample taken from the pry bar, and the pry bar. He concluded that the pry bar was “probably in contact” with the rear door and the ATM. [ 116 ] Mr. Webster explained his conclusion in more detail.

He explained the process he followed to analyze and compare the samples macroscopically, microscopically and chemically. He confirmed that yellow paint found on the ATM was indistinguishable in colour, texture, appearance and chemical composition, from the yellow paint on the pry bar and dark-grey polymer material from the ATM was similarly indistinguishable from some found on the shaft of the pry bar. [ 117 ] For the rear door, Mr.

Webster found that a foreign smear or impacted white paint found on the curved end of the pry bar was indistinguishable from white paint from the door and that red-brown paint, also found on the curved end of the pry bar, was indistinguishable from red-brown paint from the door. [ 118 ] Mr. Webster clarified that he used the word “probably” to describe the contact to account for the “remote possibility” that the paint and polymer samples originated from a source other than each other. He explained that paints and plastics are mass produced and widely available and so this is always a possibility.

On cross-examination, he confirmed that he could not say how common the paints were. He said he could only conclude that paint did originate from a known source if there was a physical match of pieces of paint, like a particular shaped chip, or something else extraordinarily unique. DEFENCE EVIDENCE RELATED TO JJ BILLIARDS Evidence of Cst. Darren Coady [ 119 ] Cst. Coady confirmed that on November 25, 2019 he arrested Mr. Farrell on unrelated matters. Upon arrest, Mr. Farrell had $990 on his person and $4000 in his vehicle. He did not remember the bill denominations. Mr.

Farrell told police that he won the money at 5 Dock Road. Cst. Coady was tasked with following up this information. He spoke to someone at that business who confirmed that Mr. Farrell had won $4465 on November 25, 2019 on the VLTs there. The money was returned to Mr. Farrell. Evidence of Matthew Rowsell [ 120 ] Mr. Rowsell testified that he has been friends with Mr. Farrell for four or five years. He recalled that on the night of January 12 to 13, 2020, Mr. Farrell texted him and asked if he was up. He replied to say, “yes, what is up?” but did not receive a response.

About 10 or 15 minutes later, before or around 1:00 a.m., Mr. Farrell came to his door. When he opened the door, Mr. Rowsell saw a car in the driveway and saw a person getting out of the back passenger seat and into the front passenger seat. [ 121 ] Mr. Rowsell said that Mr. Farrell was looking for Ms. Gaudon, who was not there. Mr. Farrell also asked him about a skidoo he had for sale. The two went out to Mr. Rowsell’s garage to look at the skidoo. He recalled hauling it out, and putting gas in it. He testified that they looked at the skidoo for 30 or 45 minutes. He said Mr.

Farrell had the money for the skidoo on him and was going to come back the next day to purchase it. He recalled agreeing to a price of $1800. He recalled Mr. Farrell counting out the money and said that Mr. Farrell had money left over. He did not say that Mr. Farrell paid him. He said he later dropped the price of the skidoo to $1600. [ 122 ] Mr. Rowsell said that he and Mr. Farrell were in the garage with the door up when Mr. Murphy returned. He said there was no other person with Mr. Murphy then. Mr. Farrell left and Mr. Rowsell locked up the garage and went back to his house. He noted the

time was 2:05 a.m. [ 123 ] Mr. Rowsell said that he recalled the incident because Mr. Farrell called him when he got out on bail four or five days later, and the date stuck with him from then on. [ 124 ] Mr. Rowsell said that he did not know Shane Murphy well, but knew him to see him. He recalled Mr. Murphy as being in a rush when he came back, beeping the horn, with his arm out the window, saying “come on, come on”. He said Mr. Murphy sped out of the driveway quickly. On cross-examination, he admitted that he did not see Mr.

Murphy at the time of drop off, but had assumed it was him because he knew the car. [ 125 ] On cross-examination, Mr. Rowsell confirmed that he knew almost immediately that Mr. Farrell had been arrested and charged. He said he had texted Mr. Farrell but did not get a response and then Mr. Farrell had called him four or five days later when he got out of jail. [ 126 ] Mr. Rowsell confirmed that he had not spoken to the police about this until November 8, 2021, which was one week before the trial started.

He confirmed that he interacted with police a number of times between January 2020 and then, including when he was arrested in April, and again in November, of 2020. [ 127 ] When asked why he did not tell police that Mr. Farrell had an alibi for the JJ Billiards break and entry immediately upon learning that Mr. Farrell had been arrested, Mr. Farrell said that he wanted to, but that Mr. Farrell had told him not to. He said he “kind of” agreed with that, because he did not want to get “tied to” the break and enter. He said he thought about it “lots of times” and that he mentioned it to Mr.

Farrell “quite a few” times. He later said he raised it with Mr. Farrell, but “not very much”. [ 128 ] Mr. Rowsell testified that he did not discuss this matter with Mr. Farrell when they were both incarcerated at Her Majesty’s Penitentiary. He said he discussed it with Mr. Farrell when Mr. Farrell first contacted him after his arrest. He testified that he was “basically” letting Mr. Farrell know that after he got out (of jail), and did not have any outstanding charges, he would be able to get involved better. Mr. Rowsell said he eventually told police because there is something in him that made him do it.

He said he is one of those “kind-hearted people”. [ 129 ] Mr. Rowsell agreed that he had not told the police officer who interviewed him several of the details he gave in his evidence before the Court. He either did not think it was relevant, or had not been asked. He also said he gets nervous talking to the police, and that some of the details had not come to his mind. He said he wished he had told more of the detail. [ 130 ] When asked if he still had the text messages between him and Mr.

Farrell that night, he said no because it was an old phone that he no longer had and his text messages get deleted after 30 days. He confirmed that he never disclosed the texts to anyone. [ 131 ] Mr. Rowsell was asked who cleared his driveway that night. He said he believed that he did it. He thought that was why he was still up. He said his mother and father are old but then said his mother is not very old. He said they were both in their 50s. When it was put to him that Mr. Murphy had said he parked on the side of the road because the drive way was full of snow, Mr.

Rowsell agreed that he might have. [ 132 ] Mr. Rowsell confirmed that he has a criminal record that includes four convictions for fraud under $5000, one of forgery, and one for public mischief for giving a false name to police and lying about the ownership of a vehicle. He said he lied because he was trying to get away with it “as best he could”, but said he had no reason to lie in court now. He also has five convictions for theft and one for possession of stolen property. He testified that he currently had no outstanding charges. During his cross-examination it became apparent that this was not true.

There appears to be at least one outstanding charge but it predates a global plea deal that Mr. Rowsell made, so he considered it a mistake that it is still on the record. [ 133 ] On redirect, when asked what people in custody who speak to police are called, he replied, “rats”. He was asked if there were consequences to being a rat and he said, yes. He knew of one man who got a bad name in prison for speaking to the police about a family matter. ANALYSIS OF JJ BILLIARDS EVIDENCE Analysis of the alibi of Chanasie Gaudon [ 134 ] I have considered that Mr.

Farrell spontaneously stated upon his detention that he had been at Ms. Gaudon’s home. Although Mr. Farrell did not testify, as is his right, I have considered this potential alibi. [ 135 ] I found Ms. Gaudon to be a credible witness who testified in a forthright and consistent manner. She was not cross-examined. She testified that she was a friend of Mr. Farrell and she had no apparent motive to be untruthful. Ms. Gaudon testified that she was home on the night in question with her baby, who was only a few months old. She said that Mr. Farrell was not at her house that night. I believed her evidence.

As such, Mr. Farrell’s statement on detention, considered in the context of all of the evidence, does not raise a reasonable doubt for me as to his involvement in the break and entry. Analysis of Shane Murphy’s evidence [ 136 ] Shane Murphy gave evidence that could be considered exculpatory. He testified that he picked up Mr. Farrell shortly before they were stopped by police, having come from Marystown when Mr. Farrell called him. He did not see Mr. Farrell put anything in the car and he explained the snow on the wire cutters was from him cleaning out his wheel wells or rocker panels before he met Mr.

Farrell. [ 137 ] I did not find Mr. Murphy to be a credible witness. His evidence was significantly undermined by cross-examination when prior inconsistent statements from his evidence at his trial were put to him. His testimony on direct examination differed on a number of key points from what he had said previously, and Mr. Murphy was unable to explain the differences. He either denied the evidence was

different, when it clearly was, or he said he could not remember. [ 138 ] Mr. Murphy’s evidence was confusing and difficult to follow and he was evasive answering questions on cross-examination. He referred to having memory troubles a number of times. [ 139 ] Mr. Murphy’s evidence was not consistent with other evidence that I find credible and accept. For example, I am satisfied that the pry bar found on the back seat of his car was used in the commission of the break and enter, both to gain entry to the back door and to access the ATM. I accept Mr.

Webster’s evidence that there is only a “remote possibility” that the matching paint and polymer samples on the pry bar, the door and the ATM originated from a source other than each other. Mr. Webster was a credible witness who gave his testimony in a careful manner. His opinions were not challenged on cross-examination and his conclusions were well supported by the evidence he found on his examination. [ 140 ] Mr. Murphy’s evidence of getting a phone call from Mr. Farrell just before he left from either his house or the Tim Horton’s parking lot to pick Mr.

Farrell up, is not confirmed by the call log on his cellphone. No call was recorded as received during this period. [ 141 ] Additionally, Mr. Murphy’s evidence was not consistent with video surveillance. His version of events does not accord with his car being captured on video at Pike’s Grocery at 1:18 a.m. and 1:20 a.m., approximately 40 minutes before he was stopped by police. Having viewed the surveillance videos, I accept Cst. G. Layman’s identification of Mr. Murphy’s car. Taken together, the different camera views show a number of details of the car and given Cst. G. Layman’s familiarity with Mr.

Murphy’s vehicle, I am satisfied with his identification. [ 142 ] Mr. Murphy had a motive to be untruthful at Mr. Farrell’s trial because he was implicated in the break and enter at JJ Billiards yet denies any involvement. [ 143 ] In short, having considered Mr. Murphy’s evidence in the context of all of the evidence, I do not find him to be credible or it to be reliable. To the extent that he gave evidence that tends to exculpate Mr. Farrell, I do not believe it and it does not raise any reasonable doubt in my mind. Analysis of the alibi evidence of Mr.

Rowsell [ 144 ] The disclosure of the alibi evidence was made a week before trial. I am satisfied that this was not sufficiently timely disclosure to permit meaningful investigation. Mr. Rowsell’s name had not arisen during the investigation otherwise. Although the RCMP was able to conduct a telephone interview of Mr. Rowsell, it is apparent that at least some relevant evidence had been lost to time. That was the text messages that Mr. Rowsell referred to, which had long since been deleted or lost when his phone was replaced.

Also, had the RCMP been able to investigate closer to the time of events, they may have been able to identify other witnesses to Mr. Murphy’s vehicle being at Mr. Rowsell’s home. I accept that over 21 months after the fact, it would have been difficult for the RCMP to conduct a meaningful investigation to find evidence that either confirmed or contradicted Mr. Rowsell’s statements. [ 145 ] I also find that the alibi disclosure lacked particularity. Mr. Rowsell testified that a third person was in the car with Mr. Murphy and Mr. Farrell. Mr. Rowsell could not identify this person and Mr.

Murphy denied his existence. Mr. Farrell chose not to disclose the name of the person. There is no onus on Mr. Farrell to disclose anything, but, having chosen to advance an alibi, a partial disclosure of particulars may result in the alibi evidence being given less weight. If Mr. Rowsell is believed, this unknown person could corroborate that Mr. Farrell was dropped off at that location, without a car, shortly before the break and enter occurred. This information would have been valuable to the investigation and Mr. Farrell’s failure to identify that person weakens the alibi evidence. [ 146 ] In

summary, Mr. Farrell’s failure to disclose the alibi in a timely and adequate manner causes me to make an adverse inference when weighing the alibi evidence. [ 147 ] Additionally, I did not find Mr. Rowsell to be a credible witness. I found his evidence illogical or inconsistent on several points: a. He initially testified that Mr. Murphy’s car was in his driveway but, under cross-examination, he conceded it may have been on the road. b. He testified to understanding the importance of his being an alibi for Mr.

Farrell immediately upon hearing of the arrest, yet he made no effort to save or record the text messages that would have corroborated his story. c. I did not find it logical that Mr. Farrell would count out $1800 in front of Mr. Rowsell for the skidoo and then not pay him but instead make plans to come back the next day. d. Mr. Rowsell’s reason for not coming forward to police sooner was somewhat of a moving target during his testimony, as I have described above. Also, his concern about being labeled a “rat” in prison did not make sense to me.

Coming forward as an alibi is not cooperating with police or inculpating someone. Additionally, Mr. Rowsell had ample opportunity to speak to police when he was not at Her Majesty’s Penitentiary. e. Mr. Rowsell was inconsistent with how often he raised his desire to come forward with Mr. Farrell, initially saying it was “quite a few times” and later, “not that much”. [ 148 ] I also found his evidence to be inconsistent with other credible evidence that I accepted, as will be discussed below. For example, Mr. Rowsell’s version of events does not accord with Mr.

Farrell’s shoeprints being found in JJ Billiards, with him being found changing his sneakers in the car, and with those sneakers being wet and “boozy” smelling. [ 149 ] Mr. Rowsell’s evidence was also inconsistent with Mr. Farrell’s statement to the police upon arrest that he had been at Chanasie Gaudon’s place and that she could be contacted to confirm. Although I do not believe Mr. Farrell’s statement was true, the that fact that it was inconsistent with Mr. Rowsell’s alibi evidence undermines the credibility of that evidence.

[ 150 ] Mr. Rowsell’s evidence was also incongruent with Ms. Gaudon’s evidence. As noted, I found Ms. Gaudon to be a credible witness and I believed her evidence. Mr. Rowsell’s statement that Mr. Farrell had come to his house at 1 a.m. looking for Ms. Gaudon seems improbable if Ms. Gaudon was home with her baby, who was only a few months old. [ 151 ] Mr. Rowsell has committed crimes of dishonesty previously and has lied to police during an investigation. Although this history does not determine Mr. Rowsell’s credibility before this Court, it is a factor I have considered. Generally, I found Mr.

Rowsell’s demeanor to be glib at times, and statements he made such as coming forward because he is a “kind-hearted” person did not enhance his credibility. [ 152 ] In

summary, I do not accept Mr. Rowsell’s alibi evidence, having considered it in the context of the circumstances of its disclosure and of all of the evidence presented at trial. His evidence does not raise a reasonable doubt and I give it no weight. Analysis of the identity evidence [ 153 ] The onus is on the Crown to prove that Mr. Farrell committed the break and enter at JJ Billiards and related crimes on January 13, 2020. Because this is a circumstantial case, I have to be satisfied that Mr.

Farrell’s participation in these crimes is the only reasonable conclusion available based on the totality of the evidence. I must consider the evidence, and any gaps in the evidence, that may result in reasonable inferences other than his guilt. [ 154 ] Having considered all of the evidence, and gaps in the evidence, I am satisfied on the issue of identity beyond a reasonable doubt. There is considerable circumstantial evidence linking Mr. Farrell to this break and enter, which I will review. [ 155 ] Mr. Farrell was present at a time and place that coincides with the actus reus .

The alarm sounded at 1:37 a.m. and he was found in a car, not far from the scene, just before 2:00 a.m. It was a snowy night and there were few cars on the road. [ 156 ] In the car was a pry bar, which I find was used in the commission of the crime, for reasons already explained. [ 157 ] In the car was another tool that could reasonably be used in a break and enter, the wire cutters. They had fresh snow on them. Mr. Farrell knew they were in the back seat because when Cst. Hiscock referred to them as “bolt” cutters, Mr. Farrell took ahold of them and corrected him. [ 158 ] At the time of arrest, Mr.

Farrell was eating a bag of chips. Ms. Barron testified that a bag of chips was missing from inventory. I found her to be a credible witness and, given her description of how inventory was tracked at JJ Billiards, I found her evidence to be reliable. The chip rack was located behind the bar and from a photograph [4] , I can see that it contained chips of the same brand and colour packaging as those identified by Cst. Hiscock. [ 159 ] At the time of arrest, Mr. Farrell was seen changing his shoes. The sneakers he changed out of were wet, and later observed by Cpl. Lee to smell “boozy”.

Whoever broke into JJ Billiards very likely ran or walked through fairly deep snow, as evidenced by tracks in the area. Cpl. Lee observed that the perpetrator(

s) had poured rum over and around the destroyed ATM. The snow and the rum are a reasonable explanation for the state of Mr. Farrell’s sneakers. [ 160 ] I found Cpl. Lee to be a credible witness who explained the process of her analysis and her conclusions in a careful, detailed manner. Her opinions were not challenged on cross-examination. I accept Cpl. Lee’s evidence that Mr. Farrell’s sneakers were not common. I accept her evidence that sneakers with the same pattern and size of outsole stepped on the calendar and in other areas of the bar. I accept Ms.

Oake’s evidence that there was nothing left out of place when she closed the bar that night. I am satisfied that the calendar was knocked down by whomever was responsible for the break and enter. I am satisfied that the likelihood of someone else in the area that night having the same style and size of shoe is very low. [ 161 ] Mr. Farrell was found with $4360 of cash, all in twenties and aligned in orientation upon his arrest. I accept Ms. Barron’s evidence that she loaded the ATM that evening with $4980 in twenty-dollar bills oriented the same way.

I accept her evidence that this money was gone following the break and enter. I accept the evidence of Ms. Oake that there was some, but not heavy use, of the ATM by bar patrons that evening. The money found on Mr. Farrell is consistent in description and amount of that which was stolen. [ 162 ] Mr. Farrell was wearing all white upon his arrest. I have reviewed the security videos and I agree with Cst. G. Layman’s assessment that the person seen in the video was wearing light-colored clothing. While no other identifying information of this person is visible, as between Mr. Murphy and Mr. Farrell, Mr.

Farrell was the only one wearing a light colour. Given the time and location of the footage, I am satisfied that the person seen in the video was involved in the break and enter. [ 163 ] Considering all of this circumstantial evidence, and the totality of the evidence, I am satisfied that the only reasonable conclusion is that Anthony Farrell broke into JJ Billiards and stole money from the ATM. In other words, I am satisfied that the Crown has proven identity beyond a reasonable doubt. [ 164 ] In coming to this conclusion, I have considered the obvious suggestion from Mr. Rowsell’s evidence, which is that Mr.

Murphy committed the break in without Mr. Farrell. I have already explained why I do not accept Mr. Rowsell’s evidence and why it does not leave me with reasonable doubt. I am satisfied that the evidence establishes Mr. Farrell’s participation in the crimes beyond a reasonable doubt. [ 165 ] I have considered potential gaps in the evidence. For example, I have considered that no fingerprints or DNA linked Mr. Farrell to the scene. I accept Cpl. Lee’s evidence that she looked for fingerprints at some of the obvious locations but did not find any.

I also accept her evidence that a possible explanation for the rum on the ATM was to defeat fingerprints and DNA. The lack of fingerprints or DNA does not raise a reasonable doubt for me. Mr. Farrell could have worn gloves or wiped off surfaces. [ 166 ] I have also considered evidence of other possible sources for the money found on Mr. Farrell. The evidence establishes that he was a frequent user of VLTs and had significant winnings in November 2019, just over a month and a half before this incident. Mr.

Murphy testified that he worked with Mr. Farrell, so employment income is another possible source. The bills were not dye marked orotherwise uniquely identified. However, when I assess evidence of the money in the context of all of the evidence, I am satisfied that theonly reasonable conclusion is that the money Mr. Farrell had, or the majority of it, was that stolen from the ATM. The concurrence oftime, place, and amount, together with all of the other evidence that links Mr.

Farrell to the break and enter, which I have alreadyreviewed, makes the possibility of the money being from another source too remote to raise a reasonable doubt. CONSIDERATION OF THE CHARGES Break and entry, section 348(1)(

a) of the Criminal Code [167] To establish guilt of breaking and entering with intent, the Crown must prove beyond a reasonable doubt that on January 13, 2020,Mr. Farrell broke into JJ Billiards and entered the premises with the intention of committing an indictable offence. Sections 321 and 350of the Criminal Code define “break” and “enter”, respectively. Break includes breaking any part, internal or external. Enter includeshaving any part of the body within the place being entered. [168] For reasons already given, I am satisfied beyond a reasonable doubt that on January 13, 2020, Mr.

Farrell broke the rear door of JJBilliards and entered the premises with the intention of causing damage to property and stealing money. As such, I am satisfied that theCrown has proven the elements of this offence beyond a reasonable doubt. Possession of property obtained by crime, section 354(1) of the Criminal Code [169] To establish guilt of possession of property obtained by crime, the Crown must prove beyond a reasonable doubt that on January13, 2020, Mr.

Farrell was in possession of money, in an amount not exceeding $5000, that he knew was obtained by crime. [170] For reasons already given, I am satisfied beyond a reasonable doubt that Mr. Farrell on January 13, 2020 was in possession of$4360, all or most of which he stole from the ATM at JJ Billiards. There is no doubt that Mr. Farrell knew the money was obtained bycrime, because he had just stolen it. As such, I am satisfied that the Crown has proven the elements of this offence beyond a reasonabledoubt.

Possession of break-in instruments, section 351(1) of the Criminal Code [171] To establish guilt of possession of break-in instruments, the Crown must prove beyond a reasonable doubt that on January 13,2020, Mr. Farrell was in possession of a pry bar and wire cutters, suitable for the purpose of breaking into a place, knowing that theinstruments had been used for such a purpose. [172] I am satisfied that Mr. Farrell, jointly with Mr. Murphy, was in possession of the pry bar and the wire cutters. I am satisfied thatMr. Farrell had both knowledge and control of both tools.

I have already found, with reference to the paint and polymer matchingevidence of Mr. Webster, that the pry bar was used to break into JJ Billiards and open the ATM. Considering the evidence of the snowon the wire cutters and the cut wire to the power meter, I am satisfied that the wire cutters were used also. Mr. Farrell demonstrated hisknowledge of the wire cutters when he was detained by Cst. Hiscock. I have no doubt that he knew the pry bar was in the car as well,because he, either alone or with Mr. Murphy, had just used it.

As such, I am satisfied that the Crown has proven the elements of thisoffence beyond a reasonable doubt. Conspiracy, section 465(1)(

c) of the Criminal Code [173] Conspiracy is an agreement between two or more individuals to act together to achieve an unlawful purpose (see R. v.Noseworthy, 2018 NCLA 69, at paragraphs 10 and 11, R. v. Clarke, 2020 NLSC 86 at paragraphs 8 and 9). [174] In R. v. Root, 2008 ONCA 869, leave to appeal refused, [2009] S.C.C.A.

No. 282, the Ontario Court of Appeal identified theelements of conspiracy that the Crown must prove beyond a reasonable doubt: i. an intention to agree, ii. completion of the agreement,iii. a common (unlawful) design, and iv. an intention to put the common (unlawful) design into effect. [175] The gist of the offence is the agreement, yet direct evidence of the agreement is not necessary. In R. v. J.F., 2013 SCC 12, theSupreme Court of Canada explained how membership in a conspiracy may be proved: [53] … I note that conspiracies are often proved by way of circumstantial evidence.

Direct evidence of an agreement tends to be ararity. However, it is commonplace that membership in a conspiracy may be inferred from evidence of conduct that assists the unlawfulobject. Justice Rinfret made this basic point in Paradis v. The King, (SCC), [1934] S.C.R. 165, some eight decades ago: Conspiracy, like all other crimes, may be established by inference from the conduct of the parties.

No doubt the agreement between themis the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. [p. 168] [176] In Root, Watt J.A. explained how evidence of the substantive offence may assist the inquiry into whether an agreement existed: [67] In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact,a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy. Papalia, at pp.276-277; O’Brien at p. 668; Dynar at para. 87; R. v.

Douglas, (SCC), [1991] 1 S.C.R. 301 at p. 316. Said somewhatdifferently, the focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done infurtherance may help to establish the core element of conspiracy – the agreement. Douglas at p. 40; David Omerod, ed., Smith and

Hogan Criminal Law , 11 th ed. (New York: Oxford University Press, 2005) at p. 374. […] [71] Conspiracy , like attempt, is a crime of intention. Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence, for example to possess or launder the proceeds of crime. The factual element in the conspiracy need not correspond with the factual elements of the substantive offence that is the object of the conspiracy. The goal of the agreement, the commission of the substantive offence, is part of the mental element or mens rea of the offence of conspiracy.

Dynar at para. 103 . … [ 177 ] So although evidence of the commission of a substantive offence may be evidence of a conspiracy, it does not follow that proof of the substantive offence necessarily results in proof of the conspiracy. Otherwise, every time the Crown proved that two or more people participated in a criminal offence, a conspiracy offence would be established. To establish conspiracy, the Crown must prove the existence of an agreement. [ 178 ] In the present case, the Crown has established the substantive offence of the break and enter at JJ Billiards.

However, beyond that, there is almost no evidence of an intention to agree or an agreement. [ 179 ] There was some evidence that Mr. Farrell and Mr. Murphy had previously been seen together in the community. There was no reliable evidence that they had been seen together at JJ Billiards. Ms. Oake said she had seen Mr. Farrell at the bar with a “Shane or Gerard Brake” a couple of times, but given her uncertainty with the name, and no further testimony of her knowledge of Mr.

Murphy, I do not find this to be reliable identification evidence. [ 180 ] There was evidence of phone calls in the days leading up to the break and enter between Mr. Murphy’s cellphone and that found on Mr. Farrell. But there is no evidence as to the content of the conversations and none of them was very long; most were of mere seconds duration. [ 181 ] There is no evidence of these two men saying or doing anything together or in concert in furtherance of the criminal design prior to the crime itself. The evidence of planning is that which may be inferred from the nature of the crime, that Mr.

Farrell had a change of shoes with him, and that there was a homemade mask in the car. But accepting that Mr. Farrell had planned his activities that night, that does not establish an agreement between him and Mr. Murphy. I do not consider the tools being in the car to be conclusive evidence of planning, because given the state of Mr. Murphy’s car, there is a reasonable possibility that they had been in the car for a long time. [ 182 ] Having considered all of the evidence, I am not satisfied beyond a reasonable doubt that the Crown has proven an agreement between Mr. Farrell and Mr. Murphy.

The circumstantial evidence, including the circumstances of the break and enter having been completed, is not enough to convince me. I do not know exactly how things proceeded between Mr. Farrell and Mr. Murphy that night. Their joint activity may have unfolded spontaneously. One of the men may not have understood that he was participating in a crime until he was part way in to it. There are reasonable explanations for both men being implicated in the break and enter, which do not require that they had conspired. As such, I find Mr. Farrell not guilty of conspiracy. Mischief to property, section 430(1) (

a) of the Criminal Code [ 183 ] Mr. Farrell is only charged with mischief in relation to the power meter. To establish guilt of mischief, the Crown must prove beyond a reasonable doubt that on January 13, 2020, Mr. Farrell willfully damaged the power meter at JJ Billiards without lawful justification or colour of right. [ 184 ] I am satisfied beyond a reasonable doubt that on January 13, 2020 Mr. Farrell, either alone or with Mr. Murphy, willfully damaged the power meter that was attached to 114 Main Street in Burin, Newfoundland and Labrador. Evidence of Ms. Barron and Ms.

Oake establishes without a doubt that the meter was damaged during the break and enter, as the power was working when Ms. Oake locked up and it was not when Cst. Hiscock entered the building. Ms. Barron testified that Newfoundland Power supplied the power and reconnected the meter at no cost to her. This management and control of the power meter establishes it as property of Newfoundland Power (see

section 588 of the Criminal Code ). Mr. Farrell had no lawful justification or colour of right to interfere with it. It is evident from the photographs that the damage to the meter was intentional and there was some cost to Newfoundland Power to repair it. As such, I am satisfied that the Crown has proven the elements of this offence beyond a reasonable doubt. CROWN EVIDENCE RELATED TO ADMIRALS GALLEY [ 185 ] Because I have found that the Crown has not proven beyond a reasonable doubt that Mr. Farrell committed the break and entry into Admirals Galley, I need only review the evidence related to identity.

Evidence of fact witnesses [ 186 ] The evidence of the fact witnesses establishes that at 6:15 a.m. on March 2, 2020, the security alarm at Admirals Galley on Queen’s Street in Marystown was triggered. Owner Robert Gute drove to the restaurant and saw footprints in the snow leading into the back door of the building, which was ajar. He did not see footprints going out. Mr. Gute alerted police. As he waited, he tried to keep an eye on both entrances to the building but during a period of time that he was around the front, another set of footprints appeared leaving the back door.

He did not see anyone. [ 187 ] RCMP officers arrived at 7:10 a.m. Mr. Gute was waiting outside the building in his truck. They entered the building and found considerable damage had been done, including to wiring in the basement. The ATM was broken open, but no money had been taken. On the outside of the building, a panel containing wiring had been pulled off and power and telecommunications wiring was exposed.

[ 188 ] On top of a speaker close to the ATM, police found a cellphone, which they seized. It was covered with dust from a fire extinguisher that had been set off. [ 189 ] The police could not get enough information from the footprints in the snow to be able to match them to a style or type of shoe. There were no fingerprints on the cellphone. Some fingerprints were found on an electrical panel door, but no matches for them were found in the national database. [ 190 ] Once investigating officers received the cellphone analysis report, they were able to determine that the phone number was

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