Court File and Parties
Court File No.: Central East - Newmarket 4911-998-12-03082-00
Date: 2012-10-05
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Shane D'Cruze
Before: Justice Peter N. Bourque
Reasons for Judgment released on: October 5, 2012
Counsel:
- D. Moull, for the Crown
- M. Miller, for the accused Shane D'Cruze
BOURQUE J.:
Overview
[1] A chance encounter in front of a tavern at 2:00 a.m., after Halloween eve, led to an unprovoked assault by a young man, and has left an innocent man severely injured.
[2] The defendant is charged with wounding Harm Schop and in doing so, committed an aggravated assault.
[3] The defendant admits that the victim Harm Schop has suffered a fractured skull as a result of two blows to the head and this constitutes an "aggravated assault" as per s. 268 of the Criminal Code.
[4] This case involves a single issue. Two men approached the victim in front of the Broken Road Tavern in Orillia. The one single fact provided by all of the witnesses to the event is that only one of the men attacked Harm Schop. The other took no part and would not be a party to the offence. It is the allegation of the Crown that the defendant, Shane D'Cruze, was the sole assailant while the other man, Jamie Woodrow-Skinner merely looked on. Aside from the testimony of Jamie Woodrow-Skinner, none of the witnesses to the scene knew the assailant nor could they identify him. The evidence therefore consists mainly of descriptions of clothing. The Crown asserts that there is enough consistency among the various observers with regard to enough parts of distinctive clothing that I should be convinced beyond a reasonable doubt as to the identity of the defendant as the assailant.
Richard Schell
[5] Richard Schell is a 29-year veteran of the OPP. He was driving past the Broken Road Tavern in Orillia in the early morning hours of November 1, 2009. He noticed a person on the sidewalk in front of the driveway between 35 and 37 West Road, Orillia, with persons around him, and in distress. Number 35 West Road is the address of the Broken Road Tavern. He stopped and began to investigate.
[6] He spoke to the following persons:
- Christine Fechner was a bartender at the premises and was in a sober condition. She was interviewed outside the tavern.
- Mr. Barry lived in an apartment above the tavern and was spoken to outside the tavern.
- Robert Farris was outside and said he did not see the blow but thought it was a punch and saw the victim fall. The officer described him as intoxicated but functioning.
- Webster Kenry was intoxicated and was with Starlee Rector, who was so intoxicated that she was ill.
- Alfred Schop is the brother of the injured person and was also inebriated.
[7] The officer stated that all but the bartender were in various states of inebriation and later stated to the assigned detective that the persons should probably not be further interviewed until they were sober.
[8] The officer noticed the injured person (Harm Schop) was breathing in a very irregular pattern and was being attended to (within moments of his attendance) by ambulance persons. There was some blood on the ground near his head, but the officer could see no wound.
[9] This officer, along with Officer McLeod, gave evidence about the scene and the eventual finding of some glasses on the sidewalk the next day. This did not become a relevant issue as the defendant admitted that he was at the scene of the incident.
Anna Jorgensen
[10] Ms. Jorgensen is a friend of the defendant. She went to a friend's house on Halloween and met the defendant there. They were all dressed in Halloween costumes and they went to a bar called TUX where there was a costume contest. The defendant was with them, along with friends Jamie Woodrow-Skinner, Jenna and Alia. After leaving the bar they went to an eatery. Jenna walked home on her own. The remaining people, Anna, Shane, Jamie and Alia, walked past the Petro Canada gas station looking for a place to buy cigarettes. The store was closed and Jamie and the defendant walked across the street (to where the Broken Road Tavern was) and she and Alia walked around the corner. The defendant and Jamie joined them some two minutes later when they came running up and were hyper. She does not remember anything they said, but she was under the impression from what was said that Jamie had been in a fight.
[11] They went into the Mac's store and bought cigarettes and then walked to Jamie's house (where they had started the evening). She was joined by her boyfriend and she drove home without going into Jamie and Jenna's apartment.
[12] She states that she got two phone calls from Jamie the next day, both with essentially the same conversation which was he said, "Nothing happened last night right, Anna." She was of the impression that he was trying to tell her not to say anything.
[13] There was some reporting of an incident on the radio and the witness stated that there was a picture of her in her costume so she decided, after some discussion with others, to go to the police.
[14] In the course of her testimony the witness was shown footage from the security cameras at the Mac's store that she went in to get cigarettes. In the period 1:57:00 to 1:59:26, she is able to identify herself, Alia and the defendant and Jamie in the store. The defendant is wearing a white shirt, a blue baseball cap and a black tie. The witness was shown several excerpts from the video surveillance cameras at the Petro Canada station. They show her and the others going up to the door of the kiosk and then leaving. It shows that the witness is going off in one direction (heading south towards Colborne Street) and the others, led by Jamie Skinner and followed by the defendant and Alia, heading in the direction of the Broken Road Tavern. The witness described Skinner as wearing a black leather waist-length jacket, his legs are bare from the knees down and he is apparently wearing black shorts.
[15] In cross-examination the witness stated that she was afraid of Jamie Skinner as he had a reputation for violence. She admitted that she was so afraid of him that she wanted to give her statement to the police at the Barrie Police station and not at the Orillia station. She also stated that when she and Alia were joined by the defendant and Jamie on their way to the Mac's store, she could not remember any words spoken by either of the two men, but she was left with the impression that it was Jamie Skinner who had struck someone. She also recalls at the Mac's that Skinner was trying to get a ride back to his apartment, rather than walk (which would take them past the Broken Road Tavern).
Christina Fechner
[16] Ms. Fechner has been a bartender for some 15 years. That evening she was the lone bartender in the Broken Road Tavern. She states that she knew Harm Schop as he was a regular at the bar. She did not know the other persons who are witnesses in this trial.
[17] She stated that she served Harm Schop three to four beers before midnight but did not know what he had to drink after that. She states that a young woman, subsequently identified to her as Starlee Rector, was "wrecked", but did not know what the other persons had had to drink.
[18] She states that she went outside the front of the tavern at about 2:00 a.m. (DST) to have a cigarette. She stated that outside were several people (about three to four) smoking and talking. She saw two persons coming across the road from the Petro Canada station and she thought by the way they walked that they were drunk.
[19] She stated in-chief that she could not remember what clothing any of the men had. In cross-examination she admitted that she told the police at the scene that the assailant was the one wearing the dark clothing and he hit the victim, who went down but got up. The two men walked away, but returned in response to something that the victim said and the same person struck the victim on his right temple and the victim went down.
[20] She can remember nothing else about the clothing of the two men.
[21] She certainly made no identification of the defendant and she clearly implicated not the defendant but Jamie Skinner as the one who struck both of the blows on the victim. The witness was shown the video of the Petro Canada (Pump 1 and 2) and thought that the person in the dark clothing (identified by Jorgensen as Jamie Skinner) was wearing the sort of clothing that the person who struck the blows was wearing. She saw the person on the same video (identified by Jorgensen as the defendant) as not wearing the type of clothing that the person who struck the blows was wearing.
Robert Faris
[22] Robert Faris went to the Broken Road Tavern after being at a party. He had consumed five to six tall boy beers when he arrived at about 1:00 a.m. and drank a rum and coke when he arrived. When asked by the Crown to describe his level of sobriety he described himself as having "a glow". He went outside with Harm Schop to have a cigarette. He stated several other people came out, including the bartender. He states that he saw four people come down the road and he describes them as rowdies. He said that two women headed toward Colborne Street.
[23] He stated that two of the four came up to where the group of people were standing and asked for a cigarette. Apparently no one offered a cigarette, and one of the persons commented on it. Harm stated "That is life", and one of the men punched Harm. He did not describe Harm as falling down. He stated the two men walked away and Harm walked after them, gesturing. He said that the person who had struck him turned and stated "I'll have to finish this", and struck a blow with his right hand to the left side of Harm's head, and Harm went down and struck his head on the pavement.
[24] He described the person who struck both blows as wearing "chequered jacket and pants, with a white shirt and a red bow tie." He could not describe the clothing of the other person. The defendant admitted to having a criminal record of three separate sentencings up to 2000.
[25] In cross-examination, he sparred with the defence counsel for a significant period of time with regard to his state of inebriation. After several questions, he admitted that he told the police that he was actually drunk and intoxicated that evening. The excerpts from his interview had to be read to the witness before he would admit it. He agreed in re-examination that "a glow" was different from being drunk.
[26] He also admitted to drinking more than he said in examination in-chief.
[27] On the issue of identification, he admitted that he was distracted by a woman standing nearby and did not get a good enough look to make any real description of the two persons, other than some items of clothing of one person.
[28] He was insistent that the person who struck both blows to the victim was wearing a checked jacket and matching pants, and was wearing a white shirt and a red bow tie.
[29] In cross-exam he also stated that the person who struck the victim had lighter hair than the person who was standing nearby. (I note that the defendant has very dark hair and Jamie Skinner (who testified later in the trial) has light brown hair.)
Stuart Stark
[30] Stuart Stark had attended a bar across the street from the Broken Road Tavern. He was there from 9:30 till about 1:30. He states that he was 50 to 60 feet away from the incident that he relates and there were street lights. He describes the lighting as not great but adequate.
[31] He states that he drank five to six beers at the bar and does not remember having more, nor drinking earlier, but he admits that it is a possibility. He had just come outside the bar and was waiting for his girlfriend who was still inside. He was alone. He stated that he saw two men walking on the sidewalk on the other side of the road and there was chirping between them and a person in front of the Broken Road Tavern. He states that one of the two men came back and struck the person in front of the tavern. He stated that the same person walked away but then came back and struck the person again. The witness said that the two men then walked and started to run away towards Colborne Street.
[32] The witness could only describe one of the men at all and stated that the one person who struck the man had a white T-Shirt and chequered pants. (He did not mention the chequered pants in his statement given to police some five days after the incident.) He was sure that it was a white T-Shirt and was sure he was not wearing a hat or a bow tie or wearing glasses. He remembered absolutely nothing about the other man, other than to say that the other man did absolutely nothing.
[33] With regard to the scene in front of the Broken Road Tavern, he stated that when the victim was hit the first time he was alone in front of the tavern. When he was hit the second time he remembers seeing a woman near him and there may have been one other person. He also states that both actions happened in front of the Broken Road Tavern and not in front of the laneway. I also note that he was sure that both men were initially walking on the sidewalk toward Colborne Street before the first blow and made no mention of anyone crossing the street from the location of the Petro Canada.
Dan Berry
[34] Dan Berry had been drinking across the road at the West 22 bar. He came across the road to his apartment, which was the upstairs of the building that the Broken Road Tavern was located in. He stated he had about four beers in some three hours and stated that he saw Harm Schop at the West 22 bar. (I note he has a lengthy criminal record with three previous drinking and driving convictions, yet he asserted that he did not and never did have an alcohol problem.) With regard to his criminal record, he admitted it to the Crown but stated that on a recent entry for assault cause bodily harm he was appealing it even though it was a guilty plea. He did not agree with the charge but states that he plead guilty for expediency. This does impact on his credibility.
[35] He denied drinking any more that evening than the four beers.
[36] He stated that he went to his apartment and turned on the TV and the radio. There was some discussion about that but I do not think that it affects his veracity. He states that he heard noises below and he looked out one of his two windows (facing east) and saw two men arguing with Harm on the sidewalk. He walked some five feet to the south and looked out the other east-facing window.
[37] He stated that people seemed to be moving south on the sidewalk so he went to another area (it appeared to be outside his apartment) and looked out a south-facing window into a driveway between the bar and the adjoining building to the south. He states that he saw just the "tail end" of a blow from the assailant's left hand to the side of the face of a person that the witness did not then identify. He stated that the person then went away, and the victim fell down. He went down but the assailants had left the scene.
[38] He describes the assailant as wearing a white pullover, no jacket, and did not see any hat or tie. He did not see any buttons on the shirt. He said that he really didn't notice the pants but thought they were black or dark.
[39] He therefore describes only one blow, and only saw the "tail end" of it, and was looking askance out a window some 12 feet from the end of the driveway. He could only have seen this scene for a split second at best.
Webster Kendry
[40] Webster Kendry was with Starlee Rector and some other people that evening. He had started drinking at another bar and had some six drinks before coming to the Broken Road Tavern where he had several more drinks. He describes going outside with Starlee and some others and the bartender Christina. They were smoking. He states that he saw two couples across the road go into the Petro Canada station and lost sight of them. He says that some 15 minutes later, two men come up the sidewalk on his side of the street from Colborne Street. He states that they asked for a cigarette and no one there offers them one. He states that the two start to leave and one says to the other that they are going to snort some coke, and Harm states, "Why do you have to be like that" and one of them hits Harm and Harm falls down. The witness says that he and others help him up and Harm and the assailant move towards each other. Starlee gets in between the two and the same man who struck the first blow, reaches around Starlee and strikes Harm again.
[41] The person who struck Harm both times was muscular, 6'1" tall and wearing a white shirt and green plaid shorts. He wasn't sure if he was wearing a baseball cap. The reference to shorts is intriguing. No one else describes anyone with a white top as wearing shorts. In fact, on viewing the video of the Petro Canada (Pump 1 and 2), it is the person in the dark clothing who appears to have bare lower legs. That person is Jamie Skinner. The person in that video with a white top (the defendant) is wearing long pants.
[42] In addition, it was pointed out in cross-exam that he described the hair of the assailant as being short and "fine, very, very fine." The witness in the stand said he used this to mean short. Quite frankly that does not seem to be the normal meaning of the words. He also described it in his statement to the police as being "almost bald." This could also be a description of short and light coloured hair, the hair of Jamie Skinner.
Jamie Skinner-Woodrow
[43] Jamie Skinner-Woodrow testified for the Crown. In-chief, he stated that he had been to another person's house that evening and may have had some drinks and then he was at his home where he had some seven drinks with friends. He then went out to a bar called TUX, with his girlfriend Jenna, and friend Anna and the defendant and his girlfriend Alia. He did not know the defendant very well. He was dressed in a costume, which consisted of a long woman's dress down to his ankles and make-up. He described the defendant as being dressed in a white shirt, bow tie, hat and plaid pants, as he was a "nerd".
[44] He describes having more drinks at TUX'S and then leaving. He and the defendant and Alia and Anna were walking on West Street and they went to the Petro Canada Kiosk to get cigarettes but it was closed. He and the defendant went across the street (to the Broken Road Tavern) to ask for cigarettes but no one offered any. The witness states that one person advanced toward the defendant and the defendant hit him; the person advanced again and the defendant hit him again. He stated that he and the defendant left the scene, and joined up with Alia and Anna at Mac's. They then went home to his house and the defendant and Alia came up for drinks with another couple, and then they left.
[45] He admitted to the Crown that he called Anna the next day two times to tell her not to say anything to the police, but he says that his motivation for that call was that he was afraid it would be revealed that he was drinking that night and he was on a recognizance to not drink. He identified himself and the others in the various videos and exhibits which have been filed. He has a criminal record, and he has pleaded guilty recently to a charge of Obstruct Justice, for telling Anna not to testify.
[46] He was extremely vague about a lot of the details and stated many times that he could not remember.
[47] In cross-examination, he admitted that he was not wearing a long skirt, but actually a short skirt (Exhibit #13 was a picture of him in costume taken at his home earlier in the evening) and while he denied he was wearing shorts, the exhibits showed he was wearing shorts.
[48] He also admitted to making the phone calls to Anna but could not explain why he had called twice. He was pressed but refused to admit that there was any other reason for him to call her, other than the recognizance issue. He also admitted that when he was first arrested later the next day, he told the arresting officers that he was home with his girlfriend on the night of the crime and he further, in the presence of the officer, tried to get his girlfriend to support his story. He reluctantly admitted to the defence counsel that he told an outright lie to the police on this issue.
[49] Defence counsel took the defendant through his interview with the police on November 2, 2009. He admitted that he told the police many, many lies for the greater part of the interview. He first tried to say that he lied because of his fear of the charge of breaching his recognizance (no drinking), but he admitted early in the interview that he had been drinking and continued to lie. He feigned an inability to remember when he knew that was not the case. He stated that he was continuing to lie to protect Shane, but he barely knew him and made several derogatory comments about him during the interview. I believe that it was no coincidence that the witness began to implicate the defendant as the assailant immediately after the officer told him that he was not a suspect in the assault and that it was the officer's belief that it was Shane who stuck the victim. At that point the witness began to tell the story that he told the Crown Attorney in his evidence in chief.
Shane D'Cruze
[50] Shane D'Cruze testified in his own defence. He owns an auto repair shop and works in North Bay with his girlfriend Alison Russell. He lived in Orillia and came down on Halloween to party with friends. He purchased a one piece "nerd" outfit and it is fully shown in Exhibit #14, consisting of a blue hat, a white shirt, bow tie, plaid pants and black glasses with tape on them.
[51] He states that he first went to their friend Charlotte's house, where he had one beer. He thought they would be there all night but there was a change of plan and they went to Jamie and Jenna's house, and then to the TUX bar. He said he had two beers at Jamie's house and then one beer at TUX's. He stated that he and Ali left TUX's alone but Jamie and Jenna and Anna joined them at the Pita Pit. They left the Pita Pit and Jenna was "wrecked" and she went home and the defendant and Jamie and Anna and Ali went down West Street to the Petro Canada, as the girls wanted to get some cigarettes.
[52] At the Petro Canada, the place was lit like it was open but the door was locked. Jamie tried the door and they heard some "chirping" from across the street. Jamie than walked across the road and the defendant followed. He states that before he got to the sidewalk in front of the Broken Road Tavern, Jamie had struck a man and he fell back but did not fall down. Jamie began to walk south and the defendant went with him and they heard the man coming up to them and he seemed very angry. The defendant said that he said to Jamie to leave him alone, but Jamie hit him again, and they both turned and walked away.
[53] He stated that they met the girls around the corner. They all went to the Mac's. He said that Jamie asked him for some money and he came into the Mac's to see if the girls had any. He was not sure what Jamie wanted it for. They went to Jamie's house and went up for drinks and then they took a cab home.
[54] The next day he got up and their friend Charlotte told them that someone had been badly hurt in front of the Broken Road Tavern. The defendant got a call from Skinner and then called him back later.
[55] He did not go to the police at any time and drove home to North Bay that evening.
[56] He was cross-examined vigorously about why he did not report to the authorities once he found out that the victim had been badly injured. He had no real explanation for that. He also spoke to Skinner later that evening for some eight minutes. He said they were exchanging information as to the status of the victim and he wanted to see what Skinner was going to do.
[57] It was also pointed out in cross-examination that in the Mac's video the defendant is seen rubbing his hands. He resisted the Crown's suggestion that he was rubbing a sore right hand and stated he was rubbing his hands after coming in from the cold.
[58] The defendant has a criminal record with one entry, trafficking in cocaine in 2007.
Analysis
[59] The defendant has raised a defence and has given evidence which, if believed, would afford him a complete defence to the charge. As per the directive in R. v. W.D., if I believe him then I must acquit him of the charge. Even if I do not believe him, I must consider if it leaves me with a reasonable doubt. Even if his evidence does not leave me with a reasonable doubt, I must still assess all of the other evidence that I do accept and decide whether the Crown has proven the essential elements of this case beyond a reasonable doubt.
[60] The defendant has a criminal record. I am concerned with his evidence in that he made no efforts to contact the authorities after he heard how serious the matter had become. He stated he was afraid of Jamie Skinner but he spoke to him two times the morning of November 1st and then he called him in the evening of the same day and they spoke for eight minutes. There is no evidence that Skinner threatened him in any way.
[61] I therefore cannot simply accept the evidence of the defendant and therefore acquit him.
[62] The issue becomes much more complicated when I ask myself whether his evidence raises a reasonable doubt in my mind. He does not simply deny the allegation; he asserts that it was someone else who did it. In asking myself whether his evidence leaves me with a reasonable doubt, I must assess all of the evidence.
[63] The issue in this case is quite simple; has the identity of the defendant been established, beyond a reasonable doubt, as the person who struck the victim. The evidence however, is anything but simple to come to grips with.
[64] With the exception of some video surveillance of persons at the Petro Canada station across the street and at the Mac's around the corner, this case hinges solely on the evidence of onlookers who, for the most part, describe very significant differences in all sorts of details, but they are also very adamant about what they saw. With the exception of the witness Christina Fechner, all of the eyewitnesses had consumed alcohol in varying degrees, and some clearly to such excess that they could not remember anything at all.
[65] Two men came up to the victim and, within a few moments, one of them struck him with his fist two times, causing him to fall to the ground and strike his head causing serious injuries.
[66] None of the witnesses at the scene knew either of the two men who came up and none of the witnesses could make any useful description of their faces. There is no evidence that the police conducted any photo line ups to assist the witnesses. The Crown states that any of the foregoing is unnecessary as there is unanimity in the descriptions of the clothing. I disagree with that assessment.
[67] From the evidence of Anna Jorgensen, and some photos, we know that the defendant was wearing chequered trousers, a white shirt, a blue and white bow tie and a blue baseball cap. He is of medium height, with dark black hair. At the time of this incident he had some facial hair on his chin and below his lip.
[68] With him that evening was Jamie Skinner. He has a similar build with light brown hair. He was wearing a black jacket. In the Petro Canada video, he seems to be wearing shorts, or at least his lower legs are bare. We have a photo of the defendant (at the TUX bar) and of Jamie Skinner-Woodrow at his home showing the costumes they were wearing. Skinner-Woodrow was wearing shorts showing under a short black dress (with white frill), and bare legs.
[69] From the totality of the evidence, both the defendant and Jamie Skinner crossed West Street from the Petro Canada station to the Broken Road Tavern at approximately 1:55 a.m. (DST). There was a brief discussion and one of the two persons stuck a blow to the victim, walked away, and returned and struck a second blow to the victim, which caused his serious injury.
[70] Christina Fechner was the only witness to the scene who was completely sober. She describes the assailant as wearing black clothes. She does not describe either of the two persons as being at all dressed like the defendant. In total, her description matches some of the clothing worn by Jamie Skinner. Her recitation was not disturbed upon cross-examination. I have no reason not to place a greater weight upon her observations of the assailant. The Crown asserts that, because she had to be reminded of her statement to the police before she had a present memory in the witness box that the assailant wore black, that I should treat her description with caution, and also that she seemed emotional about the injury to the victim. I will take all of that into account but it is clear that, within a short time of the happening of the events, she believed the assailant was wearing black. She also identified, from the video pictures of the persons at the Petro Canada station, that it was the person in all black (Skinner-Woodward) who was the assailant.
[71] Robert Faris was intoxicated. He describes the assailant's clothes as being somewhat consistent with the clothes of the defendant, except he describes a checked jacket, which did not exist, and the lack of a baseball cap. He also describes the assailant as having lighter hair that the other man who did nothing. He describes no clothing on the other person. In all, his evidence is so contradictory as to be totally inconclusive, and of no use to me in implicating the defendant. Certain aspects of it assist the defence, especially when he states that the assailant had the lighter hair of the two. The white shirt assists the Crown.
[72] Stuart Stark dresses the assailant in a white T-Shirt and chequered pants, although he never mentioned the chequered pants to the police some six days after the events. He places the two men coming up to the Broken Road bar from Colborne Street and not coming across the road. He does not mention the bow tie, or the hat. He had five or six beers to drink that evening. He gives no description at all of the other man. He was not shaken greatly in cross-examination, but his description of the men coming up from Colborne Street is at odds with the Petro Canada Pump 1 and 2 video. For that reason, and the alcohol, I place less weight on his evidence.
[73] Dan Berry's observations are consistent with the Petro Canada Pump 1 and 2 video. His description of the clothing has a white top, but it is a pullover with long sleeves. His view of the action is limited to a split-second view looking askance to his left from the upstairs window towards the sidewalk at the end of the driveway. He only describes that he saw the "tail end of the blow". He also says it was a left hand blow and all other witnesses to the blow say it was from the right hand. He was also under the influence of alcohol and has a history of alcohol abuse (the criminal record) and his denials of an alcohol problem do not ring true. I also find that for the purposes of identifying the defendant as the assailant, I feel I cannot place much weight upon his evidence.
[74] Webster Kendry was also very intoxicated, by his own admission to the police officer and, to a lesser extent, in the witness box. He also states that the two men came up from Colborne Street and in that sense suffers the same problem as the evidence of Stuart Stark. I also note that before the second blow he puts Starlee between the victim and the assailant and the assailant reaching around Starlee to strike the blow. No one else makes note of this, including Dan Berry. He puts a white shirt on the assailant, but also puts him in shorts. This is a sort of combination of the two persons, and in fact it appears that several of the witnesses may have done that. At the conclusion of his evidence, I don't think he has done much to assist the Crown's case. The clothes descriptions don't point always to the defendant, and the location of the mens' arrival does not coincide with the Petro Canada Pump 1 and 2 tape.
[75] Three of the witnesses put the assailant as wearing a white upper torso garment with nothing covering it. One of the witnesses puts him in a chequered jacket with a white shirt underneath. One witness (the only one who had no alcohol to drink that night) dresses the assailant in a black jacket and no white clothing. If this was the only evidence against the defendant then I would have to say that these conflicting descriptions (and the other difficulties with some of their evidence noted above) would make it impossible with any certainty to say who, of the two persons, struck the blows upon the victim Harm Schop.
Other Evidence
[76] The witness Anna Jorgensen relates that Jamie Skinner called her to warn her not to say anything to the police. I do not accept his evidence that this was only with regard to his potential breach of recognizance by drinking. I find that he was thinking solely of his role in the injury to harm Schop. This is clear consciousness of guilt.
[77] I also note that Anna Jorgensen, while not remembering the exact words, states that the conversation between the defendant and Skinner when they met outside the Mac's clearly led her to believe that Skinner had hurt someone. She also describes Skinner as someone with a reputation for violence and she was clearly afraid that she would be subject to a reprisal from him if she spoke to the police.
[78] The video evidence points to Skinner as being first to cross the road and go over to the Broken Road Tavern. It shows him as wearing dark clothing and his legs are bare. I find he was wearing shorts and his shirt was largely hidden by his coat.
[79] I have observed the witness Jamie Woodrow-Skinner in the witness box. His constant and almost casual lying to the police at the time of his arrest, and during the police interview, make his evidence virtually impossible to accept, insofar as he seeks to implicate the defendant in the attack upon Harm Schop. If one combines his performance in the witness box and his admitted threat to Anna Jorgensen (he plead guilty to obstruct justice) it is a distinct and real possibility that it was Jamie Woodrow-Skinner who struck the blows that injured the victim.
[80] In other words, this evidence does not, in my opinion, in any way bolster the Crown's identification evidence as presented by the persons at the Broken Road Tavern. The Crown is left, in my opinion, with a weak case of identification.
Conclusion
[81] It may well be that the defendant struck the blows against the hapless Harm Schop. The totality of the evidence presented leaves me well short of being convinced beyond a reasonable doubt that the defendant did indeed strike those blows. Being left in doubt I have no other option but to acquit the defendant, and I find him not guilty of the charge of aggravated assault.