ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: NJ-12-3562

DATE: 2012/11/30

B E T W E E N:

Her Majesty the Queen

K. McKenna, for the Crown

and -

Darryl Jamie House

P. Boushy, for the Accused

HEARD: November 19, 20, 21, 22, 23, 26, 27, and 29, 2012

D.A. BROAD J.

Background

[1] Darryl House is charged with two counts of attempted murder and one count of robbery arising from an incident late on June 28 and early June 29, 2011 outside a convenience store in the City of Hamilton. Two young men, who were sitting on a bench with their girlfriends, were approached by two men who had arrived in a vehicle. One of the men initially asked for cigarettes and then demanded that one of the young men empty his pockets. Almost immediately, both young men were stabbed in the neck with a knife in an unprovoked attack. One of the victims sustained a relatively minor wound, while the other victim required hospital treatment in the intensive care unit and continues to suffer from the effects of the injury.

[2] During final submissions, Mr. McKenna for the Crown advised that the evidence did not support the charges of attempted murder and he was therefore seeking conviction on the included offence of aggravated assault.

The Issue

[3] The major issue in this case is identification. Has the Crown discharged the onus on it to prove beyond a reasonable doubt that the accused is the the person who ordered one of the victims to empty his pockets, thereby committing the offence of robbery, and who wielded the knife causing the injuries to the victims, thereby committing the offence of aggravated assault?

The Evidence

(a) Details of the Incident

[4] The basic facts relating to the incident at the Anytime Convenience Store late on June 28 or early June 29, 2011 and the attack on the victims Pedro Parkman and Chris Palubiski were generally not subject to serious dispute at trial. Where details were disputed, they related, in large measure, to the ability of the witnesses to give reliable evidence on the identity issue.

[5] Mr. Parkman and Mr. Palubiski were roommates at the time of incident. Throughout the evening of June 28, 2011 they were at their residence drinking. They were with Mr. Palubiski’s girlfriend Heaven Culp and Mr. Parkman’s then girlfriend Jessica (no surname given in evidence). Over the course of the evening Mr. Palubiski consumed 18 or 19 beers and Mr. Parkman consumed approximately 5 or 6. The women did not consume any alcohol. Mr. Palubiski described his condition at the time of the stabbing as “intoxicated but still coherent.”

[6] There was divergence on the evidence as to whether Mr. Palubiski smoked marijuana on that day, Mr. Parkman testified that he had and Mr. Palubiski initially testified that he had not. However, on cross-examination, he admitted that he was a daily user of marijuana at that time and had likely smoked marijuana on the day in question.

[7] At approximately 11:30 p.m. on June 28 the four friends walked to the Anytime Convenience Store in order to purchase cigarettes and submarine sandwiches. On arrival, Mr. Parkman and Mr. Palubiski went into the store to order submarine sandwiches while their girlfriends waited outside on the bench. The area of the bench was well-lit with light from above and emanating from inside the store as well as from street lights in the vicinity. Ms. Culp testified that the light at the time was of similar intensity to that of the courtroom.

[8] While Mr. Parkman and Mr. Palubiski were in the store a vehicle drove up immediately in front of and slightly to the left of the front door (when viewed from inside the store). None of the witnesses were able to describe the car with particularity. Ms. Culp described it as having a “lighter colour”.

[9] There were two males in the vehicle, one in the front driver’s seat and the other in the front passenger seat, with a female in the rear passenger side seat. The female left the vehicle and entered the store. The surveillance video inside the store depicted a woman, with blond/brown hair and wearing a purple sleeveless tank-top, entering the store and going to the ATM machine within the store.

[10] Ms. Culp testified that the male seated in the passenger side of the vehicle had the window down and was verbally trying to get her and Jessica’s attention from inside the vehicle. Mr. Palubiski came out of the store and sat down on the bench to the right of Ms. Culp, closest to the door. Mt. Parkman came out a short time later and sat down on the other end of the bench beside Jessica.

[11] At some point both males got out of the vehicle. One of them approached Mr. Parkman and asked him for a cigarette. When Mr. Parkman responded negatively to this request, the male swung his arm and struck him on the side of the neck. Mr. Parkman described it as a “thud” and thought he had been punched. As it transpired, he had been stabbed and started bleeding. Very shortly thereafter one of the males demanded that Mr. Palubiski empty his pockets. Before he had a full opportunity to respond he was stabbed or slashed in the neck with a sharp object by the male who had earlier struck Mr. Parkman. Mr. Palubiski collapsed on the ground and Mr. Parkman ran into the store to summon help. The two males got back into the vehicle, as did the female who exited the store, and the vehicle drove away.

[12] The evidence was conflicting on whether it was the male who had been in the passenger seat or who had been in the driver’s seat who asked Mr. Parkman for cigarettes and who demanded that Mr. Palubiski empty his pockets. Mr. Parkman testified that it was the male who had come from the passenger side of the vehicle. He testified that the same person asked Mr. Palubiski to empty his pockets. He testified that the same person who asked him for cigarettes and who made the demand on Mr. Palubiski was the stabber. However, on cross-examination he acknowledged that at the preliminary enquiry he had testified that he did not see Mr. Palubiski being stabbed. He nevertheless maintained at trial that he did see the stabbing, but everything was going fast. He stated in his evidence that “I might not have had the best look but I did see it.”

[13] Mr. Palubiski testified that he did not see which of the two males asked for cigarettes and did not observe which one of them stabbed Mr. Parkman. Similarly, he could not remember whether the person who demanded that he empty his pockets and who stabbed him was the passenger or the driver.

[14] Ms. Culp testified that it was the person who had been sitting in the front passenger seat who approached Mr. Parkman, asked for cigarettes and who stabbed him. She testified that the same person made the demand on Mr. Palubiski and stabbed him. She heard the driver tell the stabber to leave Mr. Palubiski alone before they got back in the car and drove away.

[15] A video statement given by the co-accused Damien Nelson to the police on July 2, 2011 was admitted into evidence, following a voir dire, for the truth of its contents, under the principled exception to the hearsay rule. In his statement, he related that he was driving the car with a male companion and his companion’s girlfriend and stopped at the Anytime Convenience store. Damien Nelson told the interviewing officer that, at his companion’s urging, he approached the individuals who were sitting in front of the store and asked for cigarettes. His companion stabbed the first victim, made the demand on the other that he empty his pockets and stabbed him.

(b) Identification Evidence

[16] Mr. Parkman, Mr. Palubiski and Ms Culp each made what are called “in-dock” identifications of the accused Darryl House as the person who carried out both stabbings. When asked by the Crown whether they recognized the stabber in court, they each pointed out the accused sitting in the prisoner’s dock. They were asked how sure they were of the identification – Mr. Parkman responded that he was 100% sure, Mr. Palubiski 99% sure, and Ms. Culp testified that she was “sure of it.”

[17] As indicated above, contrary to his evidence at trial, Mr. Parkman testified at the preliminary enquiry that he did not see Mr. Palubiski get stabbed. In his interview with the police following the incident he reported that did not see the shape of the stabber’s face. During the interview he was shown photo line-ups and, although he was able to pick out the driver of the vehicle, he was not able to pick out the passenger, who he had testified was the stabber.

[18] Mr. Parkman testified that the stabber was wearing a green muscle shirt with no sleeves. He had no memory of what pants or shoes the stabber was wearing.

[19] Mr. Palubiski testified that he did not see whether it was the driver or the passenger who carried out the stabbings. He stated that it was the accused, who he had identified in court, who demanded that he empty his pockets. He testified that the accused was wearing a white T-shirt.

[20] Mr. Palubiski testified that during his police interview, within hours of his release from hospital, he was shown two photo line-ups. In the first he was asked to identify the stabber and was unable to make an identification. When shown a photo line-up relating to the driver he picked a photo of a black man, not as the driver, but as the stabber. However, it was clear that the person depicted in the photo was not the accused, who is not black. Although there was no direct evidence of the racial heritage of the accused, it was put to Mr. Palubiski by defence counsel that the accused is aboriginal.

[21] Ms. Culp testified that when Mr. Palubiski was stabbed she did not see the knife at first but saw it when the assailant pulled his arm away after the stabbing. On cross-examination she testified that she observed the stabber tuck the knife into his sleeve. She agreed that the top that he was wearing must have had long sleeves. She testified that the stabber was wearing a sweater as far as she could remember, but she could not recall its colour. She testified that the driver was wearing a long-sleeved jersey. Unlike Messrs. Parkman and Palubiski, Ms. Culp was not asked by the police to view a photo line-up.

(c) Video-taped interview of the co-accused Damien Nelson

[22] In his video-taped police interview Damien Nelson described being with a male and a female from 2:00 p.m. on June 28, 2011 until after midnight and driving them, at the male’s request, to various places in the Hamilton area in his vehicle.

[23] At approximately 11:30 p.m. he described arriving at the Anytime Convenience Store with the male and female. At his male companion’s urging, Damien asked two young men who were sitting on a bench at the front of the store for cigarettes. To his surprise and shock, his male companion, without any provocation, stabbed each of the two young men in the neck. He immediately got back into his vehicle, as did the male and female, and they drove away, returning to his father Michael Nelson’s apartment, where they had been earlier in the day. He subsequently dropped the male and female off on Sanford Street near Stinson in the City of Hamilton, approximately three blocks from his father’s apartment.

[24] On cross-examination Damien Nelson stated that the person he had described in the interview as being with on the day in question, and who had carried out the stabbing, was not the accused and he maintained that he did not know the accused.

(d) Evidence called to place Damien Nelson and the accused together on the day in question

[25] The Crown called Damien Nelson’s father Michael Nelson to testify. He could be characterized as a reluctant witness, initially professing very little memory of any facts relating the time of the incident, including where he was living and who he was living with. He did acknowledge that he knew the accused as a friend of his son Damien, and had known him for several years. However, he initially denied having seen the accused on June 28, 2011, but may have seen him prior to that time. He remembered Damien “mentioning” to him that he had pled guilty.

[26] Michael Nelson was shown a summary of an interview that he had undergone with Detective Perreria on July 2, 2011 as well as portions of a video of that interview in order to refresh his memory. He stated that viewing the video did assist him in remembering some of the events. The video-taped statement itself was not admitted into evidence.

[27] He testified that on the day in question, being June 11, 2011, his son Damien had been living with him and his roommate in their apartment on East Avenue in Hamilton for approximately two months.

[28] In answer to questions from the Crown he gave the following testimony:

Damien was with him that day
They more than likely went to get gas
Other people came to the house
Damien probably came with a friend; if anyone it would have been the accused Darryl House
It would have been before supper time
Darryl House was not with anyone that he can remember
If Darryl House had been at the house before it would have been with his girlfriend
He had met Darryl’s girlfriend before and would recognize her if her saw her again
He couldn’t recall if Darryl’s girlfriend was with him at his apartment
More than likely Damien would have brought Darryl in his car, being a gray Hyundai station wagon
Damien would have returned to the apartment with Darryl and they usually headed to the computer, turned on music and hit the fridge
If there was anyone else there it would have been his roommate
He was sure that Damien and Darryl left
They were usually just running around
Damien returned home that night, more than likely around 10 to 11 p.m.
Damien would usually come back with Darryl
In all fairness he couldn’t remember if he came back with Darryl but because of routine he would say that he did
Darryl probably stays for ½ hour
Damien usually drives Darryl home
He could not recall anything about Damien’s demeanour
He saw nothing unusual about Damien and Darryl
Earlier in the day, he probably went with Damien and Darryl to get gas at Canadian Tire and then probably went to the No Frills grocery store and then returned home
They bought groceries for the house – that is for himself, Damien and Allie
Damien and Darryl usually went into the store with him to buy something
They got home from the grocery store at 1:00 to 1:30 p.m. at the latest
Damien and Darryl then got on the phone with friends and within the hour they left
The next time he heard from Damien was 11:00 p.m. either by telephone or in person
He had no recollection that Damien phoned him
When asked if he could have been with Darryl when he returned home that evening he responded “usually”
When shown the surveillance video from the Anytime Convenience Store on the day in question he stated that he did not recognize the car, partially visible stopping in front of the store, but readily recognized the woman entering the store wearing a sleeveless purple top as the accused Darryl House’s girlfriend Skye.
When asked whether he recalled seeing Skye earlier in the day in question he responded that he may have but he did not really recall seeing her earlier that day
He stated that he may have seen her in the evening but “this is all very iffy”

[29] It is noted that, under questioning by Crown counsel, Michael Nelson’s evidence was riddled with qualifiers and generalities, frequently using such expressions as “more than likely,” “would have been,” “usually,” “would have,” and “probably.”

[30] On cross-examination Michael Nelson testified that he could not remember if Darryl House came back with Damien to his apartment on the night in question. Mr. Nelson also testified that he had been “hanging out” with Damien and his roommate Allie during the day. He said that “usually” Darryl also hung out with them but on the specific day of June 28 Mr. Nelson was “hanging-out” with Damien and Allie. He agreed with the suggestion put to him by defence counsel that he had no distinct memory of seeing the accused Darryl House on June 28, 2011.

Analysis

(a) Legal Principles

[31] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.

[32] The first principle is that the accused is presumed to be innocent of the charges, unless or until the Crown has proven his guilt beyond a reasonable doubt.

[33] Reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him, it is not enough to find that the accused was probably or likely the perpetrator of the stabbings and the robbery. However, the Crown is not required to prove with absolute certainty that he committed the offences.

[34] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.

(b) Basis of the Crown’s Case

[35] As indicated previously, the major issue in this case is identity – in particular, has the Crown proven beyond a reasonable doubt that the perpetrator was the accused? In this respect the Crown relies to a large degree on in-dock identification evidence of the two victims and an eyewitness. The court must be cautious about relying on eyewitness testimony of this nature to find an accused guilty of a criminal offence. The testimony of an eyewitness is an expression of his or her belief or impression. It is quite possible for an honest witness to make a mistake.

[36] In addition to the in-dock identification evidence of the victims and the eyewitness, the Crown relies upon other evidence which it says places Damien Nelson with the accused and his girlfriend throughout the afternoon and evening of June 28, 2011 at the scene of the stabbing. The Crown points to the video-taped statement of Damien Nelson in which he describes his male companion committing the unprovoked knife attack on the two victims at the Anytime Convenience Store at approximately 11:30 p.m. that evening. The Crown also relies on the evidence of Michael Nelson to the effect that Damien Nelson and the accused were with him at his apartment and on errands to buy gas and groceries on the day in question and that they left together in the early afternoon in Damien’s car. The Crown also relies upon the surveillance video taken at the Anytime Convenience Store which depicted, according to Michael Nelson’s identification of her, Darryl House’s girlfriend Skye at the store the time of the stabbing.

[37] Mr. McKenna, for the Crown, acknowledged that, given the frailties of in-dock identification, in order to discharge the onus on it, the Crown is reliant on the evidence of Michael Nelson to establish the linkage between Damien Nelson and the accused on the evening in question, thereby placing the accused at the scene of the attack.

(c) In-Dock Identification

[38] The danger associated with eyewitness in-court identification has been highlighted in the jurisprudence for many years. In the case of R. v. Hibbert , 2002 SCC 39 () , [2002] 2 S.C.R. 445 Justice Arbour, at para. 50, re-emphasized the danger by observing that it is deceptively credible, largely because it is sincere. She went on to note, at para. 51, that the danger of wrongful conviction arising from faulty, but apparently persuasive, eyewitness identification has been well-documented.

[39] The frailties of in-dock identification are exemplified in this case. For example, notwithstanding Mr. Parkman’s confidence in his in-dock identification some seventeen months after the event, he was unable to identify the accused in a photo line-up shown to him within days of the incident. On cross-examination he stated, in response to the suggestion that someone told him before coming to court to say that the accused in the box was the man who stabbed him, “I was told beforehand, like before this, like during pretrial, that I was going to see the same person that was in for pretrial” (meaning the preliminary enquiry). This suggests that Mr. Parkman may have come to the trial mentally prepared to identify as the perpetrator the only person in the prisoner’s dock, being the accused.

[40] Mr. Palubiski, testified to having almost complete confidence in his in-dock identification, notwithstanding his testimony that he did not observe which of the two males who got out of the car stabbed Mr. Parkman, nor could he remember whether it was the driver or the passenger who demanded that he empty his pockets and who stabbed him. On his own admission he was intoxicated, having consumed 18-19 beers over the course of the evening. On the evidence I find that he was also under the influence of marijuana. It is particularly noteworthy that he could not make an identification when shown the photo line-up for the stabber, and when shown a photo line-up for the driver, identified a photograph of a different person, from a different racial heritage from the accused, as that of the stabber. It is also noteworthy that he testified that the stabber was wearing a white T-shirt, not a green muscle shirt as testified to by Mr. Parkman.

[41] Ms. Culp, in her evidence, testified that the stabber was wearing a long-sleeved sweater, which contrasted markedly from the short-sleeved green muscle shirt and white T-shirt spoken of by Mr. Parkman and Mr. Palubiski in their testimony.

[42] In the case of R. v. Izzard (1990) 1990 13295 (ON CA) , 75 C.R. (3d) 342 (C.A.) the Ontario Court of Appeal made particular note that first-time identification has particular frailties over and above the normal frailties associated with identification evidence. Where the witness fails to identify the accused on a previous occasion, through a photo line-up or other means, such as with Messrs. Parkman and Palubiski in this case, the evidence is further weakened. As stated by Justice Arbour in Hibbert at para. 52 , there is a very weak link between the confidence level of a witness and the accuracy of that witness.

[43] In all of the circumstances I am driven, by the significant discrepancies in the identification evidence and by legal authority, to attach no weight to the in-dock identification evidence of Mr. Parkman, Mr. Palubiski and Ms. Culp, however sincere and confident they may be.

(d) Evidence of Michael Nelson

[44] The evidence of Michael Nelson, upon which the Crown relies for the necessary linkage with Damien Nelson to place the accused at the scene, is fraught with difficulty. Mr. Nelson started out by professing no recollection of the events of June 28, 2011, even going so far as to deny any knowledge of where, and with whom, he was living at that time and where his son Damien was living. After viewing his video-taped interview to refresh his memory, his evidence then transitioned to vague recollections of his son Damien Nelson being with the accused at his apartment, seemingly on the day in question, and it finally culminated, on cross-examination, to him saying that he had in fact no recollection of seeing the accused on that day.

[45] The testimony of Mr. Nelson is so riddled with qualification and uncertainty as to render it virtually devoid of any weight and not helpful to the Crown in establishing the necessary linkage between Damien Nelson and the accused on the day in question. The only evidence which Mr. Nelson appeared to be definite about was his identification of Darryl Nelson’s girlfriend Skye on the store surveillance video. However, this evidence does not have any probative value on its own, but rather is totally dependent on the video-taped interview of Damien Nelson.

(e) Video-taped interview of Damien Nelson

[46] In his video-taped interview, Damien Nelson related being with a male and the male’s girlfriend at the Anytime Convenience Store on the evening in question where he witnessed his male companion carrying out the unprovoked stabbing. In an earlier ruling, I found that this statement achieved threshold reliability for admission for the truth of its contents. However, there are difficulties with his evidence which affect its ultimate reliability and weight in implicating the accused as the perpetrator of the stabbing. Moreover, even without the difficulties with this evidence, in the absence of reliable identification evidence at the scene, or other corroborating evidence placing the accused at the scene, it is questionable whether it, combined with the identification by Michael Nelson of the accused’s girlfriend Skye in the surveillance video, achieves the requisite evidentiary standard to support a conviction.

[47] Some of the difficulties with the evidence from Damien Nelson include the following:

Damien Nelson stated at three points in his interview that it was he who asked Mr. Parkman for a cigarette, not his companion. This contrasted with the evidence of Mr. Parkman and Ms. Culp who each testified that it was the person who came from the passenger seat who asked for the cigarette and who stabbed Mr. Parkman. There was no evidence that both males made a request for cigarettes. Mr. Parkman testified that it was the same person who asked for cigarettes, who demanded that Mr. Palubiski empty his pockets and who carried out the stabbing, as did Ms. Culp;
During the interview Damien Nelson stated that he did not know his companion was in possession of a knife, whereas he had earlier related that his companion had swung a knife at his neck while they were driving back to Hamilton; and
Throughout the interview Damien Nelson seemed at times to be withdrawn, with his head resting on his arms, and at times displayed almost manic animation. He spoke extremely rapidly and at many points he was virtually incomprehensible. He testified that he was an intravenous drug user and was “high” at the time of the interview. In my view, these factors, combined with the external and internal inconsistencies referred to above, adversely affect the weight to be given to Damien Nelson’s evidence.

[48] Mr. McKenna for the Crown pointed out that, on the video, Damien Nelson at one point mentions the name phonetically spelt “Mousie” at p. 59 of the transcript (Ex. 9) in reference to an altercation with a group during the day in question. I agree from watching and listening to the video that he appears to say “Housie” rather than “Mousie”. Damien Nelson said “I was blamed for the whole situation and I was told to come you know, and talk to the guy and whatever and I was just like well, it’s coming from Housie you know I, I, I mean coming from, you know its coming from all these different angles.” Mr. McKenna suggests that “Housie” is a reference to the accused Darryl House.

[49] In my view, this reference to “Housie”, without any evidence that that was a nickname utilized by or for the accused, or some other explanation, does not afford direct linkage between the accused and the commission of the offence, given the frailties of the evidence, when viewed in its entirely. Moreover, the context of the reference is hard to follow and it does not necessarily place the accused in the car with Damien Nelson on the date in question. Even if “Housie” is a reference to the accused, it may have been a reference to something said on another occasion.

Conclusion

[50] As indicated above, if I am left with reasonable doubt as to the guilt of the accused, based upon a consideration of all of the evidence, I must acquit. Probability or likelihood of guilt is not enough to support a conviction. In the case of R. v Izzard , which rested on first time in-dock identification evidence, the Court of Appeal found that to convict was unsafe. Here the Crown’s case does rest on the first time in-dock identification to give support the balance of the evidence which, in my view, is of insufficient reliability and probative value on its own, to support a conviction without the identification evidence. Given my finding, attaching no weight to the in-dock identification evidence, I therefore likewise find it unsafe to convict the accused in this case.

Disposition

[51] On the basis of the foregoing, I find the accused not guilty of the charges in the indictment.

D.A. Broad, J.

Released: November 30, 2012