R. v. Eghani-Gozlu
Ontario Court of Justice
Date: June 27, 2018
Before: Justice Susan M. Chapman
Counsel:
- C. Valarezo, counsel for the Crown
- A. Pazuki, counsel for the accused
Overview
[1] Mr. Eghani-Gozlu stands charged with the offences of assault with a weapon, assault causing bodily harm and carrying a weapon for the purpose of committing an offence, contrary to sections 267(a), 267(b) and 88(1) of the Criminal Code respectively.
[2] There is no question but that Mr. Eghani-Gozlu was involved in a confrontation with the complainant and that he hit him over the head with a baseball bat at least once. The primary issue at trial involves a claim of self-defence pursuant to s. 34(1) of the Criminal Code. The Crown concedes that the defence has an air of reality such that it is properly considered by me. The Crown also fairly agrees that the evidence taken as a whole could well suggest that the fight between the accused and the complainant started as a consensual one. The Crown focuses its theory of liability on the basis of the accused's eventual resort to the baseball bat to assault the complainant.
[3] The accused testified to a version of events that may well amount to a valid claim of self-defence. Therefore, I must follow the analysis in R. v. W.(D.) to ascertain whether or not I believe his evidence or if it is capable of raising a doubt before going on to consider whether the Crown has on the totality of the evidence, proven the guilt of the accused beyond a reasonable doubt.
The Facts
[4] On September 2, 2016 the complainant, Pavel Grigoriev (P.G.), was working as a construction site supervisor at a residential property he part owned on Hillsdale Avenue in Toronto. At approximately 5 p.m. that day, work was finishing up on the site and he was speaking to some of the contractors about various work related matters. P.G. was talking to Krystof Fieluba (K.F.) about ordering more materials for the work site, as a second contractor, Mr. Fedorseev Vitalii (F.V.) was waiting to speak with him. At about this same time, the fourth Crown witness, Mr. Rafael Herashchenko (R.H.) was making trips back and forth from one of the properties as he was packing up his tools and getting ready to leave.
[5] It was at that point that Mr. Eghani-Gozlu, the accused, first approached P.G. and interrupted his conversation with K.F. The accused was pushy and demanding payment for services rendered. P.G. was trying to explain to him that he was not the one that had employed him and that he did not owe him any money. The discussion became animated. The accused threatened to dump two loads of dirt on P.G.'s property. As a result, P.G. followed the accused back to his truck while filming him on his cell phone. The cell phone video shows the accused walking back to his truck and then turning around and, at one point, taking P.G.'s cell phone out of his hand. P.G. testified that after the cell phone was knocked from his hand, the accused threw 4 or 5 punches at him, that he was able to dodge a few of them, but that two landed, one on his shoulder and one on his face. After the first few punches, P.G. started screaming for help. At that point F.V. ran toward the accused and pushed him to the ground. P.G. testified that he started to back up in the direction of the accused truck at which point the accused reached into the back of his truck, pulled out a baseball bat, and started swinging it at him. This resulted in some significant injuries, including a large gash on the top of P.G.'s head.
[6] The other three Crown witnesses largely support P.G.'s version of events. Further, they all deny the accused's version of events. On the whole, the evidence of the Crown's witnesses is very compelling. However, there are some significant inconsistencies and other frailties in the testimony of the Crown's witnesses, which I will address further in a moment.
The Claim of Self-Defence
[7] The accused testified. He agreed that he assaulted P.G. but testified that he did so accidentally and/or in self-defence. According to the accused, he had a loud conversation with P.G. over payment for services rendered. As he retreated to his truck, P.G. followed him and videotaped him. After speaking more calmly to P.G., the accused agrees that he became annoyed as he felt that P.G. was in his face as he continued to video-tape him. Mr. Eghani-Gozlu agrees that at one point he touched P.G. and took the phone from his hand. According to the accused, P.G. then punched him in the face and he punched him back. At that point the other men on the site joined in and kicked him to the ground and all four men continued to kick or punch him as he remained on the ground. Mr. Eghani-Gozlu testified that he had a baseball bat in the back of his truck, clearly visible, and that P.G. grabbed it. The accused then grabbed the bat out of P.G.'s hand and started swinging it around in self-defence as the four men were surrounding him. It was during this part of the altercation that the accused testified P.G. got hit in the head with the bat. At that point, the men backed down and the accused was able to get into his car and leave the scene. The accused eventually called the police and returned to the scene of the incident over an hour later, following behind the police car responding to the initial call made by the men on site.
Analysis
[8] Both versions of events cannot be true. I am mindful of my obligations pursuant to R. v. W.(D.) concerning the burden of proof. In particular, if I accept the accused's evidence that he was acting in self-defence, I must acquit. If I do not accept his evidence but it gives rise to a reasonable doubt, I must acquit. Finally, even if I reject his evidence entirely, I must look to the totality of the evidence in order to assess whether the Crown has met its burden of proving the case against the accused, including disproving the claim of self-defence, beyond a reasonable doubt.
[9] There are lots of problems with the accused's testimony. It is inconsistent with the version of events he provided to the police on the day of the incident. Though I do not necessarily believe Mr. Eghani-Gozlu's testimony, I find that it does raise a reasonable doubt, especially when viewed in light of the relatively significant and unexplained injuries documented on his person shortly after the incident. I am not prepared to say that those injuries were occasioned by a fall to the ground or a single push. Nor am I prepared to find that they were self-inflicted. Those injuries are more consistent with the accused's version of events than the version of events testified to by the Crown's witnesses and for that reason they raise a doubt in my mind as to what truly took place and whether or not the accused was acting in self-defence.
[10] Further, there are some inconsistencies and/or frailties in the Crown case that fortify my conclusion. Notably:
P.G. testified that the accused pushed him right at the outset of the encounter. However, when the video of the initial encounter was played to him, he agreed that it was more of a touch than a push;
when cross-examined on an apparent inconsistency in his evidence concerning what the accused did with his cell phone after he took it from his hand (in particular, whether he kept it in his hand or threw it to the ground), P.G. testified "I cannot describe the situation as I do not recall";
P.G. testified that he ended up on the ground at the beginning of the incident because the accused was hanging on to him at the time that F.V. pushed the accused to the ground. However, P.G. agreed in cross-examination that he told the police that he ended up on the ground because the accused punched him;
P.G. testified that the accused grabbed his phone using the very same hand that he was holding his own phone, and that while he held both phones in one hand, the accused then used his other hand to punch him. However, the witness told the police that the accused grabbed his phone and threw it to the ground and then started punching him;
P.G. testified that after the accused started assaulting him, F.V. pushed both him and the accused to the ground. However, the witness later testified F.V. pushed the accused to the ground and not him, and that he fell because the accused was hanging on to him. He then had some difficulty explaining how it was that the accused could have two cell phones in one hand, punch him with the other hand, and still hang on to him such as to cause them to fall together. P.G. also testified that he was not sure if he fell to the ground or not;
as to whether he discussed the events in question with the other witnesses, P.G. first testified that they did not and then testified that "of course they did". He then testified that they did not discuss the details of the incident but also appeared to retreat from that suggestion as well;
though P.G. testified that he did not push the accused, another witness testified that he might have;
one of the crown witnesses told police that day that only the accused fell to the ground, and not P.G. and that "the guys ran to Pavel [P.G.], put him [the accused] on the ground on his ass";
the Crown's witnesses testified that F.V. pushed the accused during the fight but were inconsistent on whether or not K.F. also took part in the altercation;
P.G. agreed in cross-examination that he would be able to see the baseball bat in the back of the accused's truck but denied ever holding it;
very significantly, though generally denying that he and the other men on site ganged up on the accused and kicked him and hit him when he was on the ground, P.G. testified in cross-examination that he did not recall them doing so. I found that to be a surprising and troubling answer. In cross-examination there was the following exchange:
Q: So you didn't push him, you didn't punch him, you didn't kick him, you didn't wrestle with him?
A: I don't recall any of that, no.
Q: What do you mean you don't recall. Did you or did you not do these things?
A: No, I have not.
Q: Sorry?
A: No I have not.
Q: No you didn't, you're saying. Is that …
A: I said I – no.
Q: So you didn't punch him, you didn't kick him, you didn't wrestle with him, you didn't …
A: I don't recall …
Q: … push him.
A: … I don't recall any of that, no. Any of the things that you're describing, I don't recall doing any of that.
Q: Okay. So no recalling doing it means you didn't do it? You didn't do any of these things?
A: I don't recall. I don't recall doing any of those things that you're describing.
Q: Okay. While he was on the ground, you didn't kick him, right?
A: I don't recall. I don't – next thing I remember, I was backing away towards his car.
Q: It's a simple question. Did you kick him while he was on the ground?
A: No I have not.
Q: Did you punch him when he was on the ground?
A: No.
Q: Did you wrestle with him on the ground?
A: No.
[11] Counsel later came back to this area of evidence in cross-examination and when again asked if he and the other men on-site kicked and punched the accused when he was on the ground, Mr. Grigoriev testified "I don't know. I don't recall. My memory is fuzzy...";
- finally and most importantly, on the version of events testified to by the Crown witnesses, there is no real explanation for the injuries sustained by the accused as documented in photographs taken both that same day and a few days later (Exhibit 5). Those injuries are relatively significant and are not likely explained by a mere fall to the ground by way of a single push. The documented injuries are unexplained by the crown's case, inconsistent with the accused's guilt and therefore on their own capable of raising a doubt.
[12] Again, though I do not necessarily believe the accused's version of events, his evidence, coupled with the pictures of unexplained injuries sustained by him proximate to the events in question, raises a reasonable doubt. I find that the Crown has not met its burden of rebutting the self-defence claim and that the accused must be acquitted on both assault related charges. As for the weapons charge, based on the accused's evidence, I have a doubt as to whether he had a baseball bat in his truck for the purpose of committing a criminal offence or instead for an innocent purpose, such as to use as a tool in knocking mud off of the tire flaps of his truck. Accordingly, I acquit him on that count as well.
Date: June 27, 2018
Justice Susan M. Chapman