Court File and Parties

DATE: January 10, 2023 COURT FILE No: 21-0632 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-AND-

TIMOTHY ELMORE

Before: Justice M. G. March

Heard on: October 3, 6, November 15, 30 and December 22, 2022

Reasons for Decision on an Application by the Defence for a Directed Verdict and an Application by the Crown to Amend the Information to Conform with the Evidence

Counsel: Mr. Richard Morris, Counsel for the Provincial Crown Mr. Ken Dunham, Counsel for Timothy Elmore

March, M.G., J. :

Introduction

1On October 3, 2022, the trial of Timothy Elmore (“Timothy”) began after he entered pleas of not guilty to offences alleged to have been committed on May 8, 2021 as follows:

a) an assault on his spouse, Erica Elmore (“Erica”),

b) mischief to household items located within their matrimonial home,

c) breaking, entering and assaulting Erica within the home,

d) loitering or prowling about the matrimonial home, and

e) uttering a threat to Erica to cause death to one Luke Moore (“Luke”).

2At the close of the Crown’s case on December 22, 2022, on the fifth day of the trial, Timothy’s defence counsel brought an application for a directed verdict in respect of a) through d) above.

3The Crown countered with an application to amend the Information to conform with the evidence called thus far at the trial.

The Evidentiary Background

4Erica testified that on May 8, 2021, Timothy and she were still husband and wife, but were in the process of dissolving their marriage. They had been spouses for 14 years. Their wedding took place on October 19, 2007.

5They had three children together, who were at the material time 13, 12 and 9 years of age.

6The family had all been previously living at 127 Desmond Trudeau Dr. in Arnprior, ON.

7However, Erica and Timothy separated on December 31, 2020. In January 2021, Timothy moved out of the matrimonial home to live with his sister.

8Following his departure, Erica and Timothy would try not to be in the house together, although there may have been one or two occasions when, Erica testified, he had slept at the house while she was there.

9However, Erica emphasized that, in general, “he’d be heading out, as I was going in”. Their goal was not to be in the house at the same time.

10Most often when Timothy wished to be with the children, Erica would stay elsewhere. She would overnight at her neighbour’s place directly beside the matrimonial home, but Timothy was not made aware of that fact.

11On May 8, 2021, Erica took the day off to spend time with her friend, Luke. To Erica’s understanding, Timothy was caring for their children off and on between 8 AM to 8 PM that day.

12Somewhere between 8 and 830 PM, Erica returned to the home. Timothy was no longer there.

13Luke came over to spend time with her around 9:00 or 9:30 PM after her children had gone to bed. Although Luke had been to her home several times before, he had never met her children.

14Timothy was aware that she would have a friend come over at times.

15Around 10:30 or 10:45 PM, Erica heard the front door slam. She had left it unlocked after Luke had arrived.

16She then heard Timothy yelling. She did not expect anyone to be arriving at that time of night.

17When she heard the commotion, Luke and she were in her bedroom. Her oldest son was downstairs in his bedroom. The two younger children were upstairs in their bedrooms.

18Timothy was asking questions to the effect of:

a) “Who the fuck is here?”, and

b) “What are you doing?”.

19Within a minute, Erica left the bedroom to find Timothy inside the front door. He continued to ask questions of her. She told him it was, “None of his business,” and “He needed to leave”.

20This exchange between Erica and Timothy lasted no more than two minutes.

21Timothy then went outside and began yelling obscenities on the front lawn such as “That fucking whore has someone in my house.” Erica believed that Timothy was intending to have their neighbours hear what he was saying.

22Erica locked the front door of their home after Timothy left. His shouting did not last long, perhaps a couple of minutes, she thought.

23Erica then went upstairs to see if her younger children were still sleeping. They were and remained so during the entire incident.

24She asked Luke if he was okay. She told him to be prepared to call police and to stay in the bedroom. She did not have time to check on her son in the basement.

25She next heard the garage door opening. She estimated that it was only two minutes or so, but less than five minutes, after Timothy had exited. She assumed he was trying to get back in.

26She recalled in giving her evidence that just prior to hearing the garage door opening, Timothy had come and tried to get in the front door again. She heard the doorknob handle turning and the door itself jolting.

27Erica explained that the garage was designed for a single car. One could access the interior of the house through a man door inside the garage. She had locked that door along with the front door after Timothy left.

28She suspected that Timothy had obtained the garage door opener from her vehicle. She did not give him permission to retrieve it. She added that she always leaves her car unlocked.

29Upon hearing Timothy’s attempts to re-enter the home, Erica told Luke to be prepared to call 911.

30Upon hearing the garage door open, Erica went downstairs again. There were then two or three “kabooms” on the door linking the garage to the interior of the home. That door flew open. The door frame busted, and the latch for the lock came off.

31Erica explained that the lock itself was damaged too. It required repair. The door remained dented up to the time that she was testifying on October 3, 2022.

32Once opened, Timothy charged through the man door of the garage. He aggressively approached her, huffing, puffing and yelling. He was very angry. She was very scared. She knew his temper. She believed that if he thought she was there with anyone, things would grow worse still.

33Erica clarified that there was nothing wrong with the man door of the garage before the evening of May 8, 2021.

34She estimated that it would take Timothy 5 to 7 steps to get to her. He was in her face. She told him again, “You need to leave”, or words to that effect. Since the separation, Erica added that Timothy had never arrived before unannounced.

35On the evening in question, Erica asserted that when Timothy and she had texted earlier during the day, he indicated that he would not be staying the night. He did not ask permission to return after he had left, and she had returned to care for the children.

36Erica specified that she stood in the centre of the stairway with her arms crossed to demonstrate to Timothy that she did not want him to go upstairs. He was undeterred, and he continued to hurl insults at her.

37Erica began to step backward and Timothy continued to approach her. She then turned around and ran towards the bedroom. She thought that was where Luke would be, so she retreated inside and locked the door behind her. Timothy busted in. He broke the door handle, latch and lock in doing so. He left punch marks as well on the outer panel of the door.

38Again, Erica told him he had to leave.

39Once inside however, Timothy stated, “I’m going to fucking kill you.” He was looking past Erica when he uttered those words. She testified that they were directed at Luke.

40She went on to explain that inside the bedroom, there is an ensuite bathroom with a door, which separates it from the master bedroom. Timothy tried that bathroom door and realized it was locked. He then delivered two to three punches to the door, and then began pounding it above Erica’s head with his left and right fists repeatedly in an alternating motion “like a gorilla”. On one occasion, he missed the door and hit her forehead.

41Inside the ensuite bathroom, Erica reckoned that Timothy heard Luke on the phone with police. Timothy then backed away.

42Erica testified that due to Timothy striking the door of the ensuite bathroom, he damaged one of its panels. She added that the door required repair thereafter.

43Timothy did not stay long in the bedroom after he heard Luke on the phone with police. He left the bedroom and walked toward the basement. He told their son to come upstairs. When the boy came up, he was holding a bat. To Erica, he looked confused. Timothy had said, “Come on up. You wanna see the guy your mom is fucking”.

44Timothy then told Erica he would take the kids. He would leave her with nothing. She would be on the street.

45Erica explained that the matrimonial home was in Timothy’s name only. She was not on title.

46Timothy suggested to their son,” Let’s go get him”, referring to Luke.

47Erica reiterated that Timothy would not leave. Soon after, police walked into the residence.

48When asked about the possibility of accidental contact, Erica offered that it occurred during Timothy’s gorilla punches to the door. To her recollection, she suffered no injuries. Nor were there any physical marks on her person in consequence of any physical contact made to her by Timothy.

49When contradicted seemingly on a statement which she swore in an affidavit, she reiterated that she was not punched by Timothy in an act of aggression. His contact with her was accidental.

50She believed that Timothy was under the influence of marijuana during the incident. She told police when they arrived on scene that Timothy did not seem mentally stable. She added that he had been in hospital for a couple of weeks after he threatened suicide, but she conceded that he mentioned nothing of the sort on the night in question.

51Additionally, she did not smell any alcohol emanating from Timothy. Nor did she believe him to be intoxicated.

52She explained that when Timothy had left and she was on her way downstairs, the police arrived. She reckoned that she must have gone to unlock the door for the officers.

53She acknowledged as well that the front door to the matrimonial home had a keypad. Timothy knew the combination for it.

54When police entered the home, Timothy was standing over their son.

55She added that she did not have a phone to call 911 when Timothy broke into the house. It would have been on the bedside table.

56However, she heard Luke calling police from the other side of the ensuite bathroom door while Timothy was in the master bedroom with her.

57She did not ever attempt to call the police herself.

58She agreed that she may have told police in the statement she gave to one of the officers that the children woke up before they were called. She neglected also to tell police about Timothy’s first unannounced entry into the house that evening.

59She did speak of the death threats Timothy had uttered to Luke. She acknowledged that Timothy did not threaten her.

60She explained that she was very flustered and scared while speaking to police. She was not thinking things through. She was just relieved to be safe.

61She could not remember how she was dressed when the officers arrived at her home. She testified she was wearing pajamas when Timothy came through the garage door.

62She denied that she had not left her bedroom when first confronted by Timothy.

63One of the officers asked if she had a separation agreement. She could not recall if it was Timothy or her who gave it to police. It had been left on a dresser in their dining room.

64No court order was ever obtained to recognize the terms of the separation agreement. It was negotiated by Timothy and her without either having legal representation. They both signed it on April 1, 2021.

65One of the terms specified that neither Timothy nor she would introduce the children to any new partner either one of them may have.

66Police took photographs of the damage done to the interior of the matrimonial home, but before they did so, according to Erica, they did some tidying up.

The Position of the Defence

67Defence counsel submits that the first four offences for which Timothy stands charged, namely:

a) an assault on Erica,

b) acts of mischief to the household items located within the matrimonial home,

c) breaking, entering, and assaulting Erica within the home, and

d) loitering or prowling about the matrimonial home

ought to be dismissed.

68Essentially, the defence argues, if Timothy were being tried before a jury, those offences would be taken away by the trial judge from any deliberation by the jury, because no reasonable jury, properly instructed, could convict on the evidence called by the Crown.

69Erica testified that Timothy’s contact with her forehead area was accidental. Her evidence on this point was unambiguous. The contact occurred while he was punching a door. She suffered no injury. Timothy was not intending to apply any force to her.

70With respect to the count of mischief, the objects damaged by Timothy did not personally belong to Erica. The doors, door frames, doorknobs, latches, locks and panels were all fixtures located within the matrimonial home. Those items were solely owned by Timothy. Erica was not on title. While she may have a spousal interest under the Family Law Act and the right to an equalization payment; however, she did not have an ownership interest in the real property at 127 Desmond Trudeau Dr., Arnprior, Ontario or its fixtures.

71Section 19 of the Family Law Act provides that both spouses have an equal right to possession of a matrimonial home. Timothy therefore had the right to enter the home, to be in it, and not to be excluded from it. A court order is the only way to displace the right of possession Timothy held in the matrimonial home (see s. 24(1)(b) of the Family Law Act). One cannot contract out of that possessory right without a court order. There is no equitable right which Erica had in the matrimonial home, nor any right she had to exclude Timothy.

72The defence contends that it is not an offence known to law to break into one’s own home. The defence relies on the case of Regina v. Bryze (1981)) as authority for this proposition. Bryze has been well settled law for more than 40 years.

73The separation agreement signed by Erica and Timothy on April 1, 2021 did not in any way alter Timothy’s ownership interest in 127 Desmond Trudeau Dr., Arnprior Ontario.

74Lastly, the defence argues that the offence of loitering or prowling can only be committed on the property of another, not on one’s own property. 127 Desmond Trudeau Dr., at the material time, belonged solely to Timothy, not Erica.

The Position of the Crown

75The Crown points out correctly that as the trial judge on a directed verdict application made by the defence, I am to assess the totality of the evidence in a manner most favourable to the Crown.

76The Crown’s recollection of Erica’s evidence was that “she did not think he [Timothy] intended to hit her”. The court is not limited in its assessment of the Crown’s evidence to the lay opinion of the Crown witness, who has no understanding of the mens rea element of assault.

77The court must not lose sight of what Timothy did. After retrieving the garage door opener without permission from Erica’s vehicle, he opened the garage door, then kicked in a man door to gain access to the interior of the matrimonial home where he had been told he was not welcome. He then charged up the stairs, broke in her bedroom door and began swinging his fists on the ensuite bathroom door.

78As a matter of fairness, the court must recognize the provisions of the signed contract, the separation agreement, entered into by Erica and Timothy. She held a possessory right in 127 Desmond Trudeau Dr., Arnprior, ON, even if she did not have an ownership interest in it.

79Erica and Timothy were on an even footing when they negotiated, without legal counsel, the separation agreement. Until that fateful night of May 8, 2021, he accepted the terms of the separation agreement. He had no right to break into the residence.

80Ownership of the matrimonial home, the Crown contends, is a red herring. Erica was the primary caregiver to the children. She contributed to the household. The separation agreement contemplated each spouse being free to care for the children without interference from the other. Timothy had no right to intrude upon Erica’s presence in the home while the children were in her charge.

81Bryze is a 42 year old case. It is persuasive, but not binding authority on this court.

82In respect of the offence of loitering or prowling on the property of another, the Crown argues that the issue cannot simply be one of ownership. Timothy spent time looking for the garage door opener. He needed it to enter the garage, and to break into the house.

83The Crown also asked the court to look to the power of amendment under section 601 of the Criminal Code to have the charges conform to the evidence called by it. Timothy, the Crown submitted, could have been charged with multiple counts of mischief.

Analysis

84I agree with the Crown submission on how I am to interpret the evidence proffered on a directed verdict application. I will assess the evidence in the most favourable light possible for the Crown.

85In doing so, and upon consideration of the alleged assault committed by Timothy upon Erica on May 8, 2021, I must dismiss it.

86Erica was clear in her evidence that the contact Timothy made with her person did not constitute an intentional application of force. She believed it to be an “accident”. What she may have said on a prior occasion to police or in affidavits matters not. What is important is what she says in court. Her testimony was unambiguous. She described the manner in which Timothy struck her as an “accident”. She used the word “accident” or “accidentally” repeatedly in her evidence.

87With respect to the alleged acts of mischief, I must dismiss that count as well. What Timothy damaged belonged to him. They were fixtures. Erica had no ownership interest in them. She may at some point, by operation of family law, be entitled to an equalization payment as a spouse, or as a former spouse of Timothy. As a matter of criminal law however, Timothy cannot be convicted for damaging his own property.

88Concerning the count of break, enter and assault, I again point out that no assault was committed. Further, while I do not condone for a moment the jealous, outlandish behaviour of Timothy in respect of the way he gained access to the interior of the matrimonial home, I am persuaded by the reasoning of Del Greco J. in Bryze, notwithstanding the age of that case.

89The facts in Bryze were not contentious. The accused and the complainant were married. At the time the alleged offences of theft, and break, enter and theft were committed, they remained husband and wife. However, they were living separate and apart.

90Mrs. Bryze entered the matrimonial home through an unlocked door, according to her, when she no longer lived there. Her husband was not at home. While there, she removed a variety of household items.

91Of significance, Del Greco J. made the following findings:

a) the place entered by the accused was or had been the “matrimonial home”,

b) no other Act known to law changed the nature of the “matrimonial home” categorization,

c) no separation agreement existed which provided that either party should have exclusive possession of the home,

d) no court order existed which provided that either party should have exclusive possession of the home, and

e) the parties were, at the time when the offence of break and enter was alleged to occurred, . . . husband and wife.

92In acquitting Mrs. Bryze, Del Greco J. cited s. 40(1) of the Family Law Reform Act 1978, the prevailing family law legislation of the era, which provided as follows:

“A spouse is equally entitled to any right of possession of the other spouse in the matrimonial home.”

93Perhaps somewhat closer on its facts to those in this case is R. v. Hajek, 2009 ONCJ 75. There the trial judge, Y. Renaud J., was dealing with an accused charged with committing mischief to the home he jointly owned with his wife. The spouses were having marital difficulties. His wife asked the accused to leave until he could “get his act together”. The accused agreed.

94However, the accused continued to return to the matrimonial home, sometimes seeing their daughter off to school, or on occasion, preparing her supper.

95Subsequently, the wife changed the locks to the matrimonial home. The accused was made aware of this.

96On the day in question, May 8, 2021, the accused and his wife had been in communication. He wished to enter the home to access the computer and to conduct some business. Essentially, he wished to send out invoices to customers.

97At 7:35 AM, when his wife was preparing herself for work and her daughter for school, the accused showed up unexpectedly. He asked to use the computer. He explained that he needed it for three hours. His wife told him she would allow him 30, or perhaps 45 minutes, if he agreed to drive her to work afterwards. This was insufficient time for the accused to accomplish what he wanted to. The accused explained this fact to his wife. He threatened to kick in the door, if she did not accede to his wish.

98The wife told him she did not believe him. She told him to return after the work day. He then left the home, and she went to catch the bus for work.

99She walked to the bus stop. She surmised that she must have missed it, so she went back home to call a cab. Upon arrival, she discovered that the front door was open. The accused was standing in the kitchen holding a telephone book. The door was seriously damaged.

100The accused was apparently calling the police to report he had broken through the door to enter the home.

101Y. Renaud J. carefully and succinctly commented on the interplay of criminal and family law principles for the damage caused to a matrimonial home owned by an accused in the following passages:

Legal justification

33Certainly, if the facts establish a legal justification for the damage, neither the actus reus nor the mens rea is present and there is no criminal act: R. v. Penashue, [1991] N.J. No. 356, (1991), 90 Nfld. & P.E.I.R. 207, 280 A.P.R. 207 (P.C.).

Determination of Right to Possession of Matrimonial Home

34It is not the purpose of this judgment to elaborate or purport to declare with authority the respective rights of married spouses in respect of the matrimonial home. In Ontario, the legislated rights are found in Part II of the Family Law Act (the FLA). The rights described therein crystallize upon separation. Specifically, sub-section 19(1) of the FLA provides that both spouses have an equal right to possession of a matrimonial home. Section 21 imposes conditions and constraints on the alienation of the matrimonial home. Section 24(b) of the FLA provides that on application of a spouse, the court may make an order for exclusive possession of the home. In the present case, it is apparent that neither spouse had made application for such relief.

35Alternatively, spouses can, by agreement, address certain issues that arise on separation, by virtue of a separation agreement, the validity of which depends on certain formalities. Married spouses cannot purport, by marriage contract, to limit a spouse’s rights under Part II of the FLA: sub-section 52(2) of the FLA. The same constraint on freedom to contract does not appear to apply to parties who are cohabiting but are not married, likely because Part II does not apply to unmarried spouses. Certainly, it is open to spouses (married or not) who are living separate and apart to settle their respective rights and obligations by separation agreement: section 54.

36Section 55 of the FLA imposes certain formal prerequisites without which a domestic contract is unenforceable. One of these formal requirements is that the contract be made in writing and be witnessed. A court has broad powers to set aside a domestic contract in certain circumstances, such as where a party did not understand the nature or consequences of the contract or in the event of failure to disclose significant assets or debts: section 56 of the FLA.

37It is not useful to say more about the legislated provisions governing spousal separations. Here, it is clear that there was no agreement between the spouses that could be enforceable. The prosecution’s position is that the defendant acquiesced when the complainant directed him to leave. Though this court does not profess to assume jurisdiction in matters of family property, it seems plain that this was not an enforceable domestic agreement.

38The circumstances of the defendant’s entry into this residence would no doubt attract censure by a civil court. The defendant’s insouciance and brashness in pushing in the door to the home, knowing that the complainant did not want him to enter, is very telling. In the present circumstances, would it surprise anyone that the defendant’s conduct would weigh heavily against him on an application by his spouse for an order for temporary exclusive possession or a temporary restraining order?

39In short, the defendant’s conduct would attract criticism. He demonstrated very poor judgment indeed. He engaged in self-help. He ought to have sought access to the computer otherwise. He had competent legal counsel at the time. He could well have filed an application to a court, perhaps seeking relief on an urgent basis, without the necessity of a conference and seeking an abridgment of time. Nothing in the present reasons should be taken as endorsing the validity of the actions of the defendant.

40Conversely, while addressing self-help in family matters, it is also clear that the complainant herself decided that she would take unilateral action, i.e. by having the locks changed. She did this without notifying the defendant. Of the two courses of conduct, perhaps the complainant’s conduct is less likely to attract criticism but she too ought to have considered bringing an application to the court.

41Finally, on the point of legal justification or excuse, it is not my intention that anything in these reasons should be taken as validating actions such as those of the defendant in this case. However questionable the correctness of changing of locks may have been, since this resulted in putting the defendant out of the matrimonial home, the defendant’s obvious reasonable response would have been to seek relief through other means. Nothing reasonably justifies the defendant’s forcible entry into the home, even if he is a joint owner. The charge of mischief ought not be dismissed on this basis.

54In the result, I conclude that while there was no legal justification or excuse for the defendant’s conduct in forcing the door to the home, there is an air of reality to the defendant’s subjective belief that he had a right to enter the home. This is sufficient to find that the defendant lacked the mens rea to commit the offence since, on his subjective belief, though ill-considered, he had an honest belief that he could use force to enter the home.

102In this case, I find that Timothy had more than an honest but mistaken belief in a right to enter and be present upon the premises of the matrimonial home. He legally owned the property. His right was one recognized by well settled principles of family law.

103Further, upon my reading of section 350 of the Criminal Code, which provides guidance on how section 348 is to be interpreted, it is my view that the Crown is required to negative any lawful justification or excuse the accused may have for entering upon the premises in question. I am not at all certain how anyone can break into a property he or she owns without validly contracting out of, or being ordered out of, his or her right of possession.

104Under section 19(1) of the Family Law Act as well, Timothy shared an equal right of possession with Erica to 127 Desmond Trudeau Dr., Arnprior, ON.

105In my humble view, Erica had no common law or statutory right to exclude him on the day in question.

106Furthermore, even if Erica held an exclusive right to possession under the terms of the contract, and here, I hasten to point out that the separation agreement was never tendered into evidence, on my understanding of family law, it would not be enforceable in any event unless the agreement was embodied within an order of the court pursuant to section 24(1)(b) of the Family Law Act.

107I must therefore dismiss the count of break, enter and assault as well.

108Regarding the offence of loitering or prowling, section 177 of the Criminal Code reads as follows:

“Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling house situated on that property, is guilty of an offence punishable on summary conviction.”

109Surely, this offence would be taken away by the judge from the jury in a judge and jury trial. The Crown has not proven that Timothy was “on the property of another” when he looked to gain entry to the residence he owned.

110I will, accordingly, dismiss the loitering or prowling offence as well.

111The Crown also sought an opportunity to seek an amendment to the counts in the Information, contending that Timothy committed numerous acts of mischief. The counts, the Crown argued, ought to be altered in their wording to conform with the evidence called at the trial. Of course, section 601(3) of the Criminal Code is subject to section 601(4), which provides that the court in deciding whether any amendment should be made must consider whether the accused has been misled or prejudiced in his defence by any variance, error or omission in the case the accused came to court to meet.

112Here, the Crown only notified of its intention to rely upon section 601(3) of the Criminal Code following defence counsel’s indication that he wished to make an application for a directed verdict. It is, of course, open to the Crown to seek amendments to the counts in the Information in response to a directed verdict application (see R. v. Powell, [1965] 4 C.C.C. 349 (B.C.C.A.)).

113In Powell, the timing of the Crown’s application for amending the count of fraud before the trial court was one of the issues for determination. The appeal was ultimately granted on another ground by the British Columbia Court of Appeal (“B.C.C.A.”), but the learned Magistrate’s decision at first instance to permit the amendment “ . . . after rejecting a motion by the appellant to dismiss on the grounds that no evidence was adduced . . .” was upheld.

114Tacit in the majority decision of the B.C.C.A. was a finding that no prejudice resulted to the appellant in consequence of the Magistrate’s decision to allow the amendment in the circumstances of that case by changing the wording of the charge to read “a cheque for $438.38” instead of a sum of money, “$417.50”.

115I find that, in this case, to consider any amendment under section 601(3) of the Code would result in the accused being misled or prejudiced in his defence. The Crown is not simply seeking an amendment with respect to a sum of money, a form of payment, or some other trifling detail, for the offences at play.

116On my assessment of the Crown’s evidence, any amendment the Crown seeks at this juncture to transform the counts to multiple alleged offences of mischief, so as to conform to the evidence called thus far, would, of necessity, fundamentally change the nature of the case the defence came to court to meet. Accordingly, it would lead to an injustice. I will not allow for this to occur.

Conclusion

117As much as I regard Timothy’s conduct on the night in question to be childish, jealous, boorish and violent, on a strict application of the law, I cannot see how it is criminal in respect of the first four counts set out in the subject Information alleging offences against him.

118For the above reasons, I shall grant the application for a directed verdict brought by the defence.