Court File and Parties

Court File No.: Newmarket Date: 2013-01-22 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Delacey Graham

Heard: January 18, 2013 Judgment: January 22, 2013

Counsel:

• Mr. Martin Dionne for the Crown
• Mr. Gary Tomlinson for Mr. Graham

Decision

KENKEL J.:

Introduction

[1] Mr. Graham is charged with assaulting Hanh Duong contrary to s. 266.

[2] The charges arise from an incident between Mr. Graham and his common law spouse in April of 2012. Ms. Duong testified that an argument escalated to the point where Mr. Graham hit her about the head. Mr. Graham agreed that there was an argument in which he took Ms. Duong's cellphone and smashed a tea cup but he denied that he hit her. In determining whether the Crown has proved the allegation beyond a reasonable doubt, credibility is the central issue.

Evidence at Trial

[3] Ms. Duong has been in a common law relationship with Mr. Graham for 14 years. They have two children.

[4] On the evening in question Mr. Graham picked up Ms. Duong from Seneca College and they returned home. Mr. Graham's uncle came over to get some computer help with ticket formatting for an event he was planning. Ms. Duong helped format the document that had been sent by email and Mr. Graham helped with the rest.

[5] While Ms. Duong was by the computer, Mr. Graham logged onto his email account. By mistake he put his password into the username box where it was visible. Ms. Duong noticed that his password included the name of a worker at a provincial Early Years youth centre where they had taken the children. Mr. Graham had admitted to having a relationship with that worker earlier that year but had said it was over so Ms. Duong was shocked to see him continuing to use her name in his password.

[6] Ms. Duong became angry, grabbed her jacket and left the house to sit outside in a nearby park. She thought about what to do next. Mr. Graham called her and asked her where she was and she told him she was at the park, didn't want to speak with him and she then hung up the phone. She saw the uncle's car driving past the park so she decided to go home. As she walked home, Mr. Graham drove past her in his parent's car. He didn't stop and she thought he must be running an errand.

[7] Ms. Duong returned to the house and went to the computer. She logged on to Mr. Graham's account using the password she had seen and she found correspondence with the youth centre worker saved in his Drafts folder. There were two messages from her and one from her spouse and they appeared to be sent and received. Ms. Duong became upset again and called Mr. Graham. She asked him when he was coming home and said they needed to talk. Mr. Graham asked her if he was speaking to the "real Anna" or "Anna's insecurity".

[8] When Mr. Graham returned home he told Ms. Duong he was "sick and tired" of her insecurity. She argued that if they were trying to work on their relationship he shouldn't be using his mistress's name as his password. This comment angered Mr. Graham and Ms. Duong testified that he became upset and flew into a rage. He put his hand on her shoulders, she tried to push him back and she scratched him. There was a struggle and she lost her balance and fell onto a bin of teddy bears and toys.

[9] Mr. Graham fell onto her although Ms. Duong explained it was part of the struggle and not intentional. She kicked him in the chest area to move him off. They both got back on their feet and Ms. Duong says Mr. Graham hit her in the face. She started to scream at him and he hit her again. Her glasses came flying off so she couldn't see. She went down to the floor in the fetal position and covered her head as Mr. Graham hit her in the head and she saw stars.

[10] Mr. Graham's father came downstairs and pulled him off her. Ms. Duong says that Mr. Graham threw his father onto the ground. Ms. Duong took her cellphone, went upstairs, went outside and dialled 911. Mr. Graham came outside towards her and took her phone away from her. She followed him to get her phone back, then thought better of it and waited outside for the police. A minute or so after she was again outside Mr. Graham came back up and threw her phone at her. The 911 operator was still on the line but now the phone was muted.

[11] As she waited outside Mr. Graham again appeared at the doorway and threw a cup of tea at her. The cup shattered when it hit the ground and her clothing was wet with tea. Mr. Graham then said he was going to wake up the children and take them away but his mother told him he was not taking the children. The police arrived shortly afterwards.

[12] Mr. Graham agreed with much of Ms. Duong's testimony to the point of the confrontation. He picked her up from Seneca, and they travelled home together. Neither party was upset. His uncle came over for computer help and he assisted him. Mr. Graham confirmed that Ms. Duong helped them with the formatting and he agreed with her evidence that he mistakenly entered his password in the username box. He also agreed that his password included the name of the woman he'd had a relationship with. Mr. Graham testified that Ms. Duong did tell him she saw the password but he says he didn't think anything of it.

[13] Mr. Graham also agrees that Ms. Duong got upset and that she left the residence. He drove past her while she sat in the park but he thought it best to leave her alone. He agreed she called as he returned and he explained that he made it clear to her that he didn't want to discuss the issue.

[14] That made Ms. Duong even more upset. When Mr. Graham returned home he went back to the computer. Ms. Duong asked him why he used the other woman's name as a password and he ignored her which he says aggravated her even more. From there the conversation escalated and Mr. Graham testified that he became really frustrated with Ms. Duong. He says she called him a loser and made other insults and got "really upset". He told her he was tired of her accusations and he became angry with the situation.

[15] Mr. Graham testified that Ms. Duong tripped herself over books and fell into the futon and the toy box. She also knocked over a child's play kitchen. He did not lose his balance. He reached out to her and she kicked him. He did not grab her shoulders or hit her in any way. He does not know how her glasses came off but agrees that they did.

[16] Mr. Graham agreed that Ms. Duong was in the fetal position on the floor when his father arrived downstairs but explained that was just something she did to disconnect from arguments. He recalls that his father yelled at him, told him to back off and pushed him away. Mr. Graham recalls yelling at his father but he disagrees that he pushed him to the ground. His father stayed as a buffer between Mr. Graham and Ms. Duong and Mr. Graham describes himself as still angry at this point.

[17] Mr. Graham agrees that he followed Ms. Duong upstairs and grabbed the phone out of her hands as she was speaking with 911. His father stopped him and told him to give back the phone. Mr. Graham testified that he tossed the phone back at Ms. Duong and didn't throw it at her with force as she said. His reason for doing that was, "male ego".

[18] Mr. Graham took the tea cup that Ms. Duong had been drinking from and admits that he attempted to return outside again but his father wouldn't let him. He agrees that he threw the cup of tea and that it shattered but disagrees that he threw it directly at Ms. Duong.

Analysis

[19] I've considered the evidence as a whole and make the findings of fact that follow in that context.

[20] Both witnesses were intelligent and articulate. Both testified in a straightforward manner.

[21] Much of Ms. Duong's evidence was corroborated by Mr. Graham. Ms. Duong's account describes in a logical fashion the discovery of the password and the progression of the related argument. It's significant that despite that provocation Ms. Duong did not cause a scene with the uncle present but chose to leave the home and think about what she should do. Even after returning and seeing the stored emails she told Mr. Graham she wished to discuss the matter. She was understandably upset, but took steps to calm herself and was calm until the final confrontation. I find her memory reliable in that context.

[22] Ms. Duong's recollection is supported by external circumstances such as the grabbing of the phone from her hand during the 911 call, the smashing of the tea cup and the admitted intervention of the father. Her evidence specifically as to the alleged assault is supported by police photographs taken that night which show swelling around her eyes, a cut on the bridge of her nose where she says she was hit while wearing glasses, abrasions on her eyelids and other scratches on her face. The photographs show moderate but noticeable swelling about the eyes and face which was more apparent when compared to her appearance in court at trial as a witness. Mr. Graham agreed in cross-examination that the police photographs showed swelling around Ms. Duong's eyes.

[23] Mr. Graham's claim that he didn't think anything of it when his spouse saw the other woman's name in his password is illogical and not credible. His evidence that he was calm and not thinking of the password even after his spouse had left the house and was sitting in the park is not credible. Mr. Graham admitted that his relationship with the other woman was supposed to have ended when that woman was confronted by Ms. Duong. He had to have known that the discovery of the password afterwards would be explosive in an already troubled relationship.

[24] Mr. Graham's explanation in cross-examination that he changed his password specifically to include the other woman's name so that if Ms. Duong went looking into his email she would somehow discover it didn't make sense and didn't appear to be technically possible. (She would need to know the password before having access to his email account) Mr. Graham's evidence regarding his relationship with the other woman was internally contradictory. The saved email, the contents which discuss a possible trip to New York City with the other woman at the same time that Mr. Graham had told Ms. Duong that he was thinking of going to New York on his own for his birthday, all long after he says the relationship was over indicate a lack of candour. The circumstances of that relationship are not at issue in this trial, but it's plain that Mr. Graham's evidence attempts to minimize the impact of the letters and password in an effort to make it appear that Ms. Duong is the one who overreacted based on irrational suspicion.

[25] Mr. Graham's actions that night indicate a high level of anger. Mr. Graham admitted that his father had to intervene and push him away from Ms. Duong. He admitted that he grabbed the cellphone from Ms. Duong as she was speaking with 911 and when his father told him to give it back he threw it at her. In that context and considering what happened next to the tea cup I don't find it likely or credible that he did so with the gentle toss he describes. Returning later to throw the tea cup despite his father's intervention is another indication that Mr. Graham's anger was to the point of rage as described by Ms. Duong. I find it very unlikely that in that state he was able to aim the smashing of the tea cup so that it did not hit Ms. Duong and I accept her account that the tea splashed onto her. I find Mr. Graham's mental state at the time to detract from the reliability of his recollection.

[26] Mr. Graham agreed in cross-examination that the police photographs showed Ms. Duong's eyes were swollen after the altercation. His suggestion in cross-examination that it was from crying is not credible. While the injuries are moderate, they are inconsistent with Mr. Graham's testimony and only reasonably accounted for by the testimony of Ms. Duong.

[27] I agree that Ms. Duong's candid account shows both parties engaged in a mutual physical struggle to a point, but Mr. Graham is almost a foot taller than she is and weighs 50lbs more. He quickly gained the upper hand and then continued using excess force well beyond anything required for self defence.

Conclusion

[28] I find Mr. Graham's testimony is neither reliable nor credible on the points at issue. I'm unable to accept his evidence nor does it leave a reasonable doubt in my mind. I find Ms. Duong's testimony to be credible, reliable, consistent with external evidence and consistent with her actions and the actions of Mr. Graham's parents. I can find no credible evidence that leaves a reasonable doubt. There will be a finding of guilt.

Delivered January 22, 2013

Justice Joseph F. Kenkel