COURT FILE NO.: CR12-030

DATE: 20120605

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

A. Shatto, for the Crown

and -

RICHARD TRAVIS WILLIAMS

A. Wilford, for the Defendant

Defendant

HEARD: May 28, 29, 30, 31, 2012

REASONS FOR JUDGMENT

Conlan J.

INTRODUCTION

[1] Who invaded the sanctity of Pasquale Mirabelli’s home on two occasions in August and September 2011? That is the primary question that confronts this Court.

[2] Richard Travis Williams stands charged in what is now an amended four count Indictment. Count 1, as amended, alleges that Mr. Williams, on or about September 23, 2011, stole items from Mr. Mirabelli while armed with an offensive weapon, to wit an object resembling a silver handgun, contrary to section 343(a) of the Criminal Code of Canada (“Code”). Count 2 alleges that Mr. Williams, on or about the same date, had his face masked with intent to commit robbery, contrary to section 351(2) of the Code. Count 4 alleges that Mr. Williams, on or about the same date, used an imitation firearm while committing robbery, contrary to section 85(2) of the Code. Count 5 alleges that Mr. Williams, on or about August 8, 2011, stole money from Mr. Mirabelli while armed with an offensive weapon, to wit bear spray, contrary to section 343(a) of the Code.

[3] At the commencement of this Judge-alone trial, permission was granted by this Court, at the request of the Defence and on consent of the Crown, for Mr. Williams to have some paper and a pencil in the prisoner’s dock. Permission was also granted by this Court, at the request of the Crown and on consent of the Defence, for the Officer-in- Charge of the investigation, who did not testify, to sit at Crown counsel table throughout the trial. The Crown withdrew what was count 3 on the Indictment, an arson allegation. Upon the Court raising whether the robbery counts specified the correct sections of the Code, the Crown applied to amend those counts 1 and 5 to reflect the proper section, 343(a). Those amendments were granted by this Court on consent of the Defence.

[4] Mr. Williams entered pleas of not guilty to the four counts that he was arraigned on.

[5] Thank you to counsel for a trial that was conducted very well on both sides. The trial began on Monday, May 28 and completed with closing submissions on Thursday, May 31, 2012.

A SUMMARY OF THE EVIDENCE

Constable Peschke

[6] The Crown’s first witness was Constable Peter Peschke of the Mount Forest Identification Unit of the Ontario Provincial Police.

[7] Constable Peschke took numerous photographs while he examined the crime scene near the Village of Badjeros, in Grey County, on the morning of September 23, 2011. That was the location of Mr. Mirabelli’s home, where he lived alone. The photographs were marked collectively, on consent of the Defence, as Exhibit 1. Each photograph has a specific number attached to it as well as a description.

[8] Constable Peschke also took some photographs, on the same date, of Mr. Mirabelli’s stolen motor vehicle, a Chevrolet Blazer, at a different location where the vehicle was found. Those photographs are also part of Exhibit 1.

[9] A different police officer, not called to testify, took some photographs, one week later on September 30, 2011, of Mr. Mirabelli’s injuries, most notably a serious wound to his forehead which to this day scars the face of Mr. Mirabelli. Those photographs are also part of Exhibit 1 and were entered on consent of the Defence. They augment those taken of Mr. Mirabelli by Constable Peschke.

[10] No fingerprint or forensic evidence was garnered from Constable Peschke’s examinations.

[11] In cross-examination by the Defence, Constable Peschke testified that there was no odour of bear spray when he was at the home of Mr. Mirabelli within hours of the home invasion on September 23, 2011, however, he added that bear spray does not have an odour or leave a residue after a short period of time.

[12] Also in cross-examination by the Defence, Constable Peschke testified that he has sustained blurred vision in the past after being sprayed by police mace and dog spray; that he had never been targeted with bear spray; and that bear spray is generally stronger than dog spray.

Bonnie Lee Milloy

[13] Bonnie Lee Milloy was the second witness called by the Crown. She is a very close friend, like a sister, to Mr. Mirabelli.

[14] Ms. Milloy did not witness any home invasion. But she arrived at Mr. Mirabelli’s home very shortly after the assailants left in the very early morning hours of September 23, 2011. She noticed signs of the intrusion and theft such as a broken exterior door frame; Mr. Mirabelli’s missing motor vehicle; a missing computer monitor that she had loaned to her close friend; broken glass from the door between the entrance and the living room; blood on the sofa; dog feces on the floor; the dog cowering; and kitchen drawers and cupboards pulled open as if searched.

[15] She also noticed signs of Mr. Mirabelli’s injuries such as him holding his stomach area; him being in and out of consciousness; him being covered in blood; what looked to her like a bullet hole in his forehead; his cut lip; his injured wrist, arm and leg; his slow and deliberate speech and groggy demeanour; and his limping.

[16] Ms. Milloy testified that it did not appear to her that Mr. Mirabelli was under the influence of alcohol. She did not know if he had taken any medication.

[17] Ms. Milloy testified that the flipped-up sofa cushion shown in Exhibit 1, photograph number 43, was put in that position by her after she arrived.

[18] Ms. Milloy testified that the condition of the home upon her arrival was unusual, and that she had just cleaned it two days earlier. She confirmed that the injuries she saw on her close friend were not present when she saw him on September 21, 2011.

[19] 911 was called. Both Mr. Mirabelli and Ms. Milloy spoke to the dispatcher. Police and ambulance arrived. Mr. Mirabelli later went to the hospital in Markdale. His medical records comprise Exhibit 2, entered on consent of the Defence.

[20] All of the above evidence relates to the incident on September 23, 2011. Ms. Milloy also gave some evidence about the home invasion that Mr. Mirabelli experienced on August 8, 2011.

[21] She had received a telephone call from her close friend. Upon arriving at his house, she told Mr. Mirabelli to go to the hospital. His eyes were puffy and swelling. She had never seen them like that before or since. There was dirt on the floor and a plant knocked over. There was an overwhelming smell in the home which was burning her eyes. There was a residue and smell that lingered for weeks. Mr. Mirabelli’s laptop computer was missing. He was treated at the hospital in Orangeville, where his eyes were flushed.

[22] In cross-examination by the Defence, Ms. Milloy testified that the home was much more ransacked after the September incident than it was after the August invasion.

[23] She testified that, after the August incident, Mr. Mirabelli told her that he recognized the voice of one of the assailants but did not know who invaded his home and gave her no names.

[24] Ms. Milloy testified in cross-examination by the Defence that Mr. Mirabelli had security system equipment at his home, and that the security cameras were stolen in the August incident.

[25] Finally, in cross-examination by the Defence, she testified that the bed mattress was saturated with bear spray and wreaked after the August nightmare.

Melissa Little

[26] Ms. Little, the third witness called by the Crown, knows and used to be a neighbour of Mr. Williams. She also knows and has a good relationship with Mr. Mirabelli, almost like daughter and father.

[27] She did not witness any home invasion. She gave evidence, however, of the aftermath.

[28] Regarding the August incident, she helped clean the house. Things had been thrown around; there was a strong smell like pepper spray in the bedroom; and Mr. Mirabelli’s arms, face and throat were red.

[29] Concerning the September invasion, she again assisted with cleaning the home. There was glass everywhere; the door was kicked in; there were boxes torn open; there was garbage on the floor; and Mr. Mirabelli was injured with a broken arm and a forehead wound that looked like he had been hit with the end of a gun.

[30] In cross-examination by the Defence, Ms. Little testified that Mr. Mirabelli spoke of his animosity towards Mr. Williams, but that she was unaware of any animus in the other direction.

Pasquale Mirabelli

[31] The primary witness for the Crown, and the only person to testify for the prosecution who was present at either home invasion, was the victim, Mr. Mirabelli.

[32] This Court feels compelled to state the following, unequivocally, before any detailed discussion of this man’s testimony. I believe that Mr. Mirabelli had his home invaded on two occasions in August and September 2011. I accept his evidence that intruders entered his home wearing disguises of sorts. I accept his evidence that they brandished weapons including a gun, real or imitation, as well as a baseball bat, a knife and spray. I accept his evidence that they stole from him.

[33] Unless Mr. Mirabelli is in the running to have his name alongside the likes of Bogart and the Hepburns, I do not believe for a minute that he was lying to this Court about these horrendous attacks on his person and his home. He was not acting. I watched him in the witness box. He is still terrified about what happened. And rightfully so. He was shaking. He was pale and sweating. He seemed genuine. His evidence was largely consistent, with some caveats discussed below. He was not shaken on the main events of both invasions. He remained steadfast. His evidence, for the most part, made common sense. Even Mr. Williams believes most of what his accuser has said.

[34] If this trial was against an unknown accused and the Court could make findings of guilt against an unspecified suspect, I would. The Crown has proven beyond a reasonable doubt that Mr. Mirabelli was robbed on September 23, 2011 (count 1), and that the assailants had their faces disguised or masked on that date (count 2), and that the assailants used a gun, real or imitation on September 23 (count 4), and that Mr. Mirabelli was robbed on August 8, 2011, with the assailants then using bear spray (count 5).

[35] But who did it?

[36] Mr. Mirabelli says that one of the intruders both times was the accused before the Court.

[37] Let us look more closely at the testimony of the victim, particularly as it relates to the identification evidence.

[38] Mr. Mirabelli testified that he saw Mr. Williams occasionally around town and spoke with him about five times on the telephone, although Mr. Mirabelli had no specific recollection of any of those conversations. He had never spent any considerable time with Mr. Williams other than once when Mr. Williams helped him move some appliances from Dundalk to Badjeros. The last time that Mr. Mirabelli ever spoke to or saw Mr. Williams was several months before the August invasion, in March or April 2011.

[39] All of the above evidence goes to the reliability or not of Mr. Mirabelli’s identification of Mr. Williams as one of the assailants in both invasions. I will return to this point in my analysis of the evidence.

[40] During the first intrusion in August 2011, Mr. Mirabelli’s eyes were burning from being sprayed by one of the suspects. The victim testified that he saw Mr. Williams standing near his bedroom doorway, holding the spray container. The accused and two others beat Mr. Mirabelli senseless. It was dark – around 4:00 a.m. The only lighting was from the television. Mr. Williams was wearing all black clothing and had his face and hair partially covered with black paint like the kind that soldiers wear. There were two other intruders. Mr. Williams made threats and was ranting and raving, although no specific comments were attributed to the accused except for something about the Hell’s Angels. Mr. Mirabelli blacked out from the attack and woke up in the bathtub, where he washed out his eyes. His house was ransacked. Numerous items were stolen. After being ordered to the basement, the madmen left.

[41] Mr. Mirabelli testified that he is 110 percent certain that Mr. Williams was one of the intruders on August 8, 2011.

[42] In direct examination by the Crown, Mr. Mirabelli explained that he did not report the August incident until September 30, 2011 because he was terrified for his family, confused and in pain. He then added, seemingly off the cuff and somewhat misplaced in the dialogue with the Crown, that, during the August intrusion, one of the suspects had called out the name “Ricky”.

[43] Regarding the September 2011 invasion, Mr. Mirabelli testified that Mr. Williams “pistol-whipped” him, saying “I told you I was coming back”. That left a scar from a serious wound on the victim’s forehead. There were three others this time instead of two. One of the others had a knife. Mr. Mirabelli was beaten severely with a baseball bat. Several items were stolen. There were more threats like “cut his throat” from the accused. The assailants were all wearing dark clothes and balaclavas with only small holes for their eyes and mouths. The lights were on inside the home. Again, Mr. Mirabelli was escorted to the basement before the escape was made.

[44] Mr. Mirabelli said that he knew Mr. Williams was one of the intruders because he recognized his voice, which he described in cross-examination by the Defence as deep and raspy, and by the way he was acting. “I’m not Ricky” is what Mr. Williams allegedly said when Mr. Mirabelli called him Ricky.

[45] Mr. Mirabelli testified in direct examination by the Crown that it was the suspects who flipped that sofa cushion up to search for goodies: photograph 43 of Exhibit 1. Remember that Ms. Milloy had testified that she did it. Later in cross-examination by the Defence, Mr. Mirabelli stated that he was not sure who flipped up that sofa cushion; it could have been Ms. Milloy or one of the suspects. He said that he was referring earlier in his evidence to the other couch shown in the same photograph.

[46] The victim spoke depressingly about his lasting injuries, physical and emotional. Those injuries are real and significant.

[47] Mr. Mirabelli reported the September 23 incident to the police on that same day, but he still did not say anything about the August 8 invasion until a week later. In cross-examination by the Defence, he explained that he did not have much time to speak to the police on September 23, although he did talk to them twice that day.

[48] Mr. Mirabelli first said in his evidence that the suspects ripped his phone out of the wall during both incidents, and that he did not remember whether he was able to get it working again after the intruders left. In cross-examination by the Defence, when he was confronted with the fact that his cell phone was also stolen during the August invasion leaving it impossible for him to have called Ms. Milloy, the victim stated that he now recalled that he got the wall phone working after the suspects left.

[49] In direct examination by the Crown, Mr. Mirabelli stated that he saw Mr. Williams take his truck keys and go outside and start the truck and drive away. In cross-examination by the Defence, Mr. Mirabelli testified that he did not actually see Mr. Williams start the Blazer or drive away in the Blazer; rather, he saw him leave the house with the truck keys and then heard the truck start. Mr. Mirabelli admitted that, at the preliminary inquiry, he testified only that he heard Mr. Williams run out to the truck. He never mentioned at the inquiry that he saw the accused with the truck keys in his possession or the accused leave the house with the keys or the accused start the truck or the accused drive away.

[50] The victim testified at trial that he thought that Mr. Williams had broken into his home before the August 2011 invasion. When confronted with his evidence at the preliminary inquiry where he testified that he had never been broken in to before at that home, Mr. Mirabelli said to Defence counsel in cross-examination that he had forgotten about the earlier break-in when he gave his evidence at the inquiry.

Constables Colin Bottoset and Andrew Wilder of the OPP

[51] Constable Bottoset was the fifth witness called by the Crown. Constable Wilder the sixth. They were the first officers to respond to the crime scene on September 23, 2011. They each spoke briefly about seeing signs of a home invasion and injuries to Mr. Mirabelli. Constable Wilder testified that it was dark outside the home – he had to use his flashlight to see anything of interest.

The Accused, Richard Williams

[52] The Crown’s case rested after Constable Wilder’s testimony. The Defence elected to call evidence. The accused testified.

[53] In a very brief examination-in-chief, Mr. Williams spoke about his serious back problems. He said that he met Mr. Mirabelli twice, very briefly each time. He never talked to Mr. Mirabelli on the telephone.

[54] Mr. Williams denied any involvement in any way in either home invasion.

[55] In cross-examination, Mr. Shatto for the Crown very ably strengthened the case against the accused. Certain potential motives were planted. Opportunity became a live issue. Mr. Williams admitted that he was upset about Mr. Mirabelli accusing him of breaking in to his house, and that he wanted to confront Mr. Mirabelli about it. Mr. Williams admitted further that he was upset about Jennifer King telling him that Mr. Mirabelli abused her, and that he wanted to confront Mr. Mirabelli about that as well. Mr. Williams acknowledged that he has a temper. The accused said that he was at home, alone, during the two invasions. He admitted that he made a telephone call from Orangeville at 3:49 p.m. on August 8, 2011, six minutes after the medical records in Exhibit 2 show that the victim arrived at the hospital in Orangeville. Mr. Williams admitted that he lived as close as 20 minutes away from Mr. Mirabelli’s home near Badjeros at the time of the two intrusions, and that he knew that the victim lived around Badjeros. He acknowledged a lengthy criminal record including crimes of violence and crimes of dishonesty. Mr. Williams admitted that he was using cocaine in August and September 2011. He acknowledged that he told the police in a statement given on October 11, 2011 that “if someone fucks with him or his family…they’re gone”, and that Mr. Mirabelli had tried to mess with his mind prior to the August 2011 incident by making the false accusations about the earlier break-in. He admitted further that he had $1,250.00 on his person when he was arrested by the police on October 11, 2011, not long after $2,500.00 in cash was stolen from the victim’s house during the invasion on September 23. And he admitted to having pellet guns at his home in August and September 2011.

[56] Mr. Williams was, however, unwavering in his denials of any involvement in either incident. And he showed some refreshing candour in politely admitting each and every criminal conviction put to him by the Crown during cross-examination and in readily acknowledging his long cocaine addiction. Note that there was no objection by the Defence to Mr. Williams` entire criminal record being marked an Exhibit and no Corbett Application. The accused also showed some respect when he said that he believes Mr. Mirabelli had his home invaded but is simply mistaken about Mr. Williams being there.

Jennifer King

[57] Ms. King was the final witness called at the trial. She testified for the Defence.

[58] Her only important contribution was an admission in cross-examination by the Crown that, some time before the August home invasion, the accused and his friend, Paul, had argued with Mr. Mirabelli at her apartment in Dundalk about Mr. Williams owing some money to Mr. Mirabelli.

[59] There was no reply evidence from the Crown.

THE POSITIONS OF THE PARTIES

[60] The Defence theory of the case is that Mr. Mirabelli is attempting to frame Mr. Williams because of some personal vendetta that the victim has towards the accused. I reject that theory. I find that there is no reliable evidence to support it. I accept Mr. Mirabellis evidence that he was not jealous of the accused, contrary to the Defence submissions in closing. I do not believe that Mr. Mirabelli staged the crime scenes, as implied by the Defence in closing submissions. I do not believe that Mr. Mirabelli deliberately fabricated any of his evidence, as submitted by the Defence in closing arguments. I do not believe that Mr. Mirabelli deliberately embellished his evidence, as argued by the Defence in closing submissions. I do not believe that many portions of the victims testimony are illogical, as argued by the Defence in closing submissions.

[61] The Crown asserts that the charges have all been proven beyond a reasonable doubt. The Crown argues that identity has been proven beyond a reasonable doubt. That is the only real issue confronting this Court, and I will deal with that below. The Crown argues that Mr. Williams had more than one motive to commit these crimes; I agree that there is some evidence of motive on the part of Mr. Williams. The Crown submits that Mr. Williams’ testimony was inconsistent with what he told the police upon his arrest and different than the evidence of Jennifer King. I agree with that submission by the Crown but only to a very limited extent as discussed below.

[62] The Court raised with both counsel at the commencement of closing submissions whether the Court could or should reasonably draw any inference that one of the assailants in the August 2011 home invasion was a male named Mario Massa, and if so, whether that has any impact on the assessment of the strength of Mr. Mirabelli’s identification of Mr. Williams as one of the assailants. The Court pointed out that Mr. Mirabelli testified that one of the suspects in the August 2011 incident spoke with a Portuguese accent; that Mr. Williams testified that he lived at the time of the invasions not that far away from Badjeros at the place of Mr. Massa near Dundalk and was friends or associates with him; and that Mr. Williams testified that Mr. Massa is or was at risk of being deported to Portugal. The Crown submitted that it does not ask the Court to consider drawing any such inference and that there is no evidence of the identity of the assailant described by the victim as having a Portuguese accent. The Court appreciates and respects that concession by the Crown.

[63] The Crown submitted further that it does not ask the Court to draw any inference as to the identity of the “coloured fella” described by Mr. Mirabelli as being involved in both invasions, keeping in mind that Ms. King testified that Mr. Williams’ friend, Paul, is Pakistani. The Court appreciates and respects that concession by the Crown.

ANALYSIS

[64] Mr. Williams is presumed to be innocent of the charges against him. He has no burden of proof. The burden of proof rests exclusively with the Crown. Canada’s criminal justice system does not require the Crown to prove merely that an accused is probably guilty, or likely guilty. It requires proof of each essential element of each offence, beyond a reasonable doubt. Unless I am sure that Mr. Williams is guilty, I must acquit him.

[65] Since Mr. Williams testified, I must follow the standard instruction. I may, as with all witnesses, accept some, all or none of the evidence of the accused. But if I believe his evidence, specifically his denials, then I must find him not guilty. If I do not believe his evidence, then I must still acquit him if I am left in a reasonable doubt by his evidence. If I do not believe his evidence and am not left in a reasonable doubt by it, I must still find him not guilty if, on the whole of the evidence at trial that I do accept, I am left in a reasonable doubt as to whether the Crown has proven each essential element of the offence in question.

[66] This case hinges on identification evidence. That type of evidence must be viewed with a healthy dose of caution. It has been shown to be notoriously prone to inaccuracy. It has grounded many wrongful convictions. It suffers from a number of serious frailties.

[67] Corroboration is not required to prove these charges against Mr. Williams beyond a reasonable doubt. But the lack of any corroborative evidence is an important factor in the overall analysis. There is no material corroborative evidence to speak of in this case, on the issue of identity.

[68] This is not a credibility contest between Mr. Mirabelli and Mr. Williams. It is not a question of who I believe more. As I indicated earlier in these Reasons, I sympathize with Mr. Mirabelli. I feel sympathy for him because I believe that he is telling the truth, for the most part. He was tortured by men who attacked him in the sanctity of his own house. They beat him and stole from him. They have left him scared – on his face; in his mind and in his heart. He did not deserve that.

[69] It would be easy for this Court to say simply that I do not believe the evidence of Mr. Williams. But why should I conclude that? Simply as a mechanism to proceed quickly to the third branch of the W.(D.) analysis where it may be more comforting to rest acquittals on? That is not justice.

[70] I believe Mr. Williams when he says that he had nothing to do with these home invasions. I recognize that he had a possible motive and opportunity. I acknowledge that there are some suspicious circumstances like the telephone call from Orangeville and the money found on his person when he was arrested. But there is nothing inherently unreliable or obviously incredible about his evidence. There is nothing that smells of nonsense. He has a criminal past which includes dishonesty, but that is not enough for me to conclude that I disbelieve him. On these facts, in this case, he withstood a surgical cross-examination. He did not embellish or get himself mired in inconsistencies. There are only two matters to address on the latest observation. One, in cross-examination by the Crown, Mr. Williams admitted that he told the police upon his arrest that several persons (6-7) had introduced him to Mr. Mirabelli around town; while in his testimony at trial he had said that only his friend Paul had introduced him to the victim. Two, Mr. Williams denied in cross-examination by the Crown that he argued with Mr. Mirabelli at Ms. King’s apartment about the accused owing some money to Mr. Mirabelli; while Ms. King testified in cross-examination by the Crown that she told the police that there was an argument at her apartment between Mr. Mirabelli and Mr. Williams that had something to do with money owed by the accused to the victim, and that what she told the police on that point was true – she adopted that earlier statement. On the first matter, I find it to be minor and not a reason to reject Mr. Williams’ denials or find that he and the victim knew each other well or even much at all. On the second matter, I find that it is not important as, to be frank, I do not put much weight on the evidence of Ms. King. Her memory was bad. It made no sense when she said that she was close to Mr. Williams but knew nothing about his cocaine use. And she was inconsistent on the very evidence now being relied upon by the Crown to impeach the accused; that is, Ms. King testified that the argument had something to do with money owed by the accused to Mr. Mirabelli only after being confronted in cross-examination by the Crown with her prior inconsistent audio statement to the police. I do not find Ms. King to be a reliable or credible witness.

[71] Mr. Williams’ demeanour in the witness box was polite and respectful. He did not try to appear as an angel. He did not lash out at Mr. Mirabelli. There is nothing about his denials which is impossible or improbable or nonsensical in light of the whole of the evidence at trial.

[72] I believe Mr. Williams when he says that he had nothing to do with these crimes. On that basis, I must acquit him.

[73] But I will add that, even if I had concluded that I do not believe Mr. Williams and am not left in a reasonable doubt by his evidence, I would still have acquitted him on the basis of the weak identification evidence and a few but striking peculiarities with the evidence of the victim. I have called Mr. Mirabelli a “victim” throughout these Reasons because he is one.

[74] First, aside from the usual dangers associated with identification evidence or eye witness evidence, it must be noted that, even on the victim’s account, he hardly knew Mr. Williams before the August home invasion. This is not a case of picking a complete stranger out of a line-up, but it is also not a case of recognizing the face, body or voice of someone that the victim knew well or fairly well or even somewhat well. That weakens the reliability of the identification evidence.

[75] Second, during the first intrusion in August 2011, Mr. Mirabelli’s eyes were burning from being sprayed by one of the suspects. I find on the basis of Constable Peschke’s evidence that spray makes one’s vision blurry. It was dark - around 4:00 a.m. The only lighting was from the television. Mr. Williams was wearing all black clothing and had his face and hair partially covered with black paint like the kind that soldiers wear. All of that weakens further the reliability of the identification evidence.

[76] Third, one of the few items of the victim’s evidence that I do not accept is his comment , misplaced at it was, that, during the August intrusion, one of the suspects had called out the name “Ricky”. I am not suggesting that Mr. Mirabelli is deliberately lying. I think he is mistaken. He is remembering that now, in error, as a way to reinforce his genuine belief that Mr. Williams was there. Mr. Mirabelli himself admitted, several times during the trial, that his memory is not that dependable. That, in turn, affects adversely the reliability of his evidence generally and specifically the identification evidence. Although we took several unscheduled health breaks during his testimony, at his request and because I was concerned that he looked very bad and might pass out, his memory shortcomings were evident from the very beginning of his testimony when he could not recall at all, without the help of medical records, the approximate date of the first home invasion in 2011. That was near the start of the Crown’s direct examination.

[77] Fourth, regarding the September 2011 invasion, the assailants were all wearing dark clothes and balaclavas with only small holes for their eyes and mouths. That provides the background for weak identification evidence. Mr. Mirabelli said that he knew Mr. Williams was one of the intruders because he recognized his voice, which he described in cross-examination by the Defence as deep and raspy, and by the way that he was acting. There was simply not enough opportunity, on anyone’s account, for Mr. Mirabelli to become at all acquainted with Mr. Williams’ voice before that date. The evidence is just not dependable. Further, I listened intently to the accused’s voice while he testified. There is absolutely nothing unique or striking or odd about it. And it is not particularly deep or raspy.

[78] Fifth, there were some material inconsistencies in the evidence of Mr. Mirabelli which go to his credibility. Not every matter pointed out in cross-examination was important. But the following are:

(a) Mr. Mirabelli testified in direct examination that it was the suspects who flipped that sofa cushion up to search for goodies: photograph 43 of Exhibit 1. Remember that Ms. Milloy had testified that she did it, which evidence I accept. Later in cross-examination, Mr. Mirabelli stated that he was not sure who flipped up that sofa cushion; it could have been Ms. Milloy or one of the suspects. He said that he was referring earlier in his evidence to the other couch shown in the same photograph. I do not believe that explanation. It is too convenient. It was crystal clear that Mr. Mirabelli was indeed referring to the same sofa in his earlier testimony.

(b) Mr. Mirabelli first said in his evidence that the suspects ripped his phone out of the wall during both incidents, and that he did not remember whether he was able to get it working again after the intruders left. In cross-examination by the Defence, when he was confronted with the fact that his cell phone was also stolen during the August invasion leaving it impossible for him to have called Ms. Milloy, the victim stated that he now recalled that he got the wall phone working after the suspects left. I do not believe that. The improved memory at that moment in cross-examination seems implausible.

(c) In direct examination by the Crown, Mr. Mirabelli stated that he saw Mr. Williams take his truck keys and go outside and start the truck and drive away. In cross-examination by the Defence, Mr. Mirabelli testified that he did not actually see Mr. Williams start the Blazer or drive away in the Blazer; rather, he saw him leave the house with the truck keys and then heard the truck start. Mr. Mirabelli admitted that, at the preliminary inquiry, he testified only that he heard Mr. Williams run out to the truck. He never mentioned at the inquiry that he saw the accused with the truck keys in his possession or the accused leave the house with the keys or the accused start the truck or the accused drive away. These references reflect significant discrepancies in the evidence of Mr. Mirabelli on an important matter which goes to the heart of what Mr. Williams allegedly did in relation to the theft of the Blazer.

(d) The victim testified at trial that he thought that Mr. Williams had broken in to his home before the August 2011 invasion. When confronted in cross-examination by the Defence with his evidence at the preliminary inquiry where he testified that he had never been broken in to before at that home, Mr. Mirabelli said that he had forgotten about the earlier break-in when he gave his evidence at the inquiry. That seems incredible. Mr. Mirabelli is not the type of person to forget a break-in.

[79] Thus, I would have found Mr. Williams not guilty of all charges on the third branch of the W.(D.) analysis, even if I had concluded that I neither believed nor was left in a reasonable doubt by his evidence.

CONCLUSION

[80] Stand up, please, Mr. Williams. I find you not guilty of counts 1, 2, 4 and 5 on the Indictment. Acquittals are entered on each of those counts. You are free to exit the prisoner’s box.

[81] Thank you to both counsel. And I acknowledge the very fine police investigative work in this case. Finally, let me say that I hope that Mr. Mirabelli fully recovers from these vicious attacks.

Conlan J.

Released: June 5, 2012

COURT FILE NO.: CR12-030

DATE: 20120605

ONTARIO

SUPERIOR COURT OF JUSTICE