COURT FILE NO.: CR12- 70000609

DATE: 20121112

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

her majesty the queen

• and -

LEON ALEXANDER and EDMUND BENJAMIN

TABLE OF CONTENTS

Reasons for Judgment

Forestell J.

Page No.

Overview.. 1

The Charges. 2

Positions of the Parties. 2

Summary of approach to the determination of the case. 3

Part I - legal principles. 4

Burden of Proof. 4

Evidence as a Whole. 4

Credibility and Reliability. 4

Identification Evidence. 5

Post-offence Conduct 9

Defence Evidence. 10

Part II- Summary of the Evidence. 10

i) Relationships and background. 10

ii) Confrontation between Leon Alexander and Andy James on the Cruise Ship. 12

Anna George. 12

Kenrick Williams. 13

Alex Lewis. 14

Ryan Noel 15

Michelle Phillip. 15

iii) Confrontation in the Parking Lot between. 16

Andy James and Leon Alexander 16

Kenrick Williams. 16

Anna George. 17

Lois Harewood. 18

Alex Lewis. 19

Eric Mitchell 19

Ryan Noel 20

Dexter Regis. 21

Michelle Phillip. 21

iv) The Brandon Ramdeen Fight 22

Curland Andy Natoo. 22

Eric Mitchell 22

Ryan Noel 23

Michelle Phillip. 23

Kenrick Williams. 24

Dixon Henry. 25

Holford Lewis. 27

Dexter Regis. 28

Collins George. 29

Lois Harewood. 31

v) Physical Evidence. 31

vi) Evidence of the Pathologists. 33

vii) Defence Evidence. 35

Leon Alexander 35

Kimron Bengy. 42

Part III -credibility and reliability. 45

Dexter Regis and Collins George. 45

Dexter Regis. 45

Prior Admitted Lies under oath. 45

Prior Inconsistent Statements. 46

Inconsistencies with other witnesses/evidence. 46

Improbabilities. 47

Alcohol Consumption. 47

Identification/Ability to Observe. 47

Discussion withOothers. 47

Flight 47

Consistency with other Evidence. 48

Collins George. 48

Prior Lies under oath. 48

Prior Inconsistent Statements. 48

Inconsistencies with other witnesses/evidence. 48

Improbabilities. 49

Alcohol Consumption. 49

Identification/Ability to Observe. 49

Discussion with others. 49

Consistency with other Evidence. 50

Approach to the Evidence of Dexter Regis and Collins George. 50

Anna George. 50

Prior Inconsistent Statements. 50

Inconsistencies with other witnesses or evidence. 50

Discussion with others. 51

Credibility and Reliability of Anna George. 51

Michelle Phillip. 52

Inconsistencies. 52

Passage of Time and Discussions with Others. 52

Identification/Ability to Observe. 52

Assessment of Credibility and Reliability. 52

Alex Lewis. 53

Implausibility. 53

Discussion with Others. 53

Assessment of Credibility and Reliability. 53

Eric Mitchell 53

Inconsistencies/Implausibilities. 53

Identification/Ability to Observe. 54

Discussion with Others. 54

Consumption of Alcohol 54

Assessment of Credibility and Reliability. 55

Holford Lewis. 55

Inconsistencies/Implausibilities. 55

Identification/Ability to Observe. 55

Assessment of Credibility/Reliability. 56

Kenrick Williams. 56

Inconsistencies. 56

Identification/Ability to Observe. 57

Assessment of Credibility/Reliability. 57

Dixon Henry. 58

Inconsistencies. 58

Discussion with Others. 58

Identification/Ability to Observe. 58

Consumption of Alcohol 58

Assessment of Credibility/Reliabilty. 59

Ryan Noel 59

Inconsistencies. 59

Discussion with Others. 60

Identification/Ability to Observe. 60

Assessment of Credibility/Reliability. 60

Lois Harewood. 60

Leon Alexander 61

Inconsistencies. 61

Kimron Bengy. 62

Part IV- Analysis and Findings. 62

Count 1 – Second degree murder of Andy James. 62

Liability as a Principal 62

Liability as a Co-principal or Party. 65

Count 2 -Manslaughter of Brandon Ramdeen. 66

Edmund Benjamin. 68

Leon Alexander 70

Conclusion. 72

COURT FILE NO.: CR12- 70000609

DATE: 20121112

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

her majesty the queen

• and -

LEON ALEXANDER and

EDMUND BENJAMIN

Karen Erlick and Karen Simone for the Crown

Edward J. Sapiano for Leon Alexander

Stephen R. Bernstein for Edmund Benjamin

HEARD: October 17, 18, 19 22, 23, 29, and 30; November 1, 2, 6,7, 8, 15, 16, 19, 23, 26 and 27, 2012

FORESTELL J.

REASONS FOR JUDGMENT

Overview

[1] In the early morning of June 21, 2009, two young men, Andy James and Brandon Ramdeen were stabbed to death. The killings occurred following a cruise on the Toronto harbor called the “Island Link-up”. The cruise was a peaceful and enjoyable community event. At the end of the cruise, Andy James became involved in a confrontation with the accused, Leon Alexander. After the confrontation, Andy James was seen to have received two fatal stab wounds to his abdomen. No witness saw the stab wounds inflicted. No witness saw a knife.

[2] A short time after Andy James was stabbed a group of men went looking for the individuals they believed were responsible for stabbing Mr. James. Brandon Ramdeen was one of the men who went looking for Mr. James’s assailants. The group believed that a person named Edwin was responsible. A physical altercation occurred between Brandon Ramdeen, Edwin Modeste and others. After this altercation Brandon Ramdeen collapsed, having suffered two fatal stab wounds. Again, no witness saw the wounds inflicted.

[3] The tragic deaths of Andy James and Brandon Ramdeen were shocking to the many people attending the cruise. There were about 300 people on the cruise that night and many of the 300 were around the parking lot area at the time of the stabbings. Many witnesses came forward and gave statements to the police about what they had seen. The evidence of the witnesses, the evidence of the forensic identification officer and the video surveillance footage suggest a poorly lit and somewhat chaotic scene. Not surprisingly, many of the witnesses in this trial were imprecise in their recounting of the events and they were not entirely consistent with one another. What emerged from their accounts was the perception that there was a conflict between two groups of men. One group was referred to as the “Greenz Connection family” and consisted of the two DJ’s who were known as “Greenz Connection”, Edmund Benjamin and Anski Julien and their three friends, Edwin Modeste, Kimron Bengy and Leon Alexander. The other group was made up of friends of the deceased, Andy James. This second group included Brandon Ramdeen, Collins George and Dexter Regis.

[4] All of the “Greenz Connection” group was charged in relation to the deaths of Andy James and Brandon Ramdeen.

The Charges

[5] Leon Alexander is charged with the second degree murder of Andy James and the manslaughter of Brandon Ramdeen. Edmund Benjamin is charged with the manslaughter of Brandon Ramdeen.

[6] Mr. Alexander and Mr. Benjamin have pleaded not guilty to the charges. With the consent of the Attorney General, the trial proceeded before me without a jury.

[7] Two other men have already been tried in relation to the homicides. Kimron Bengy was acquitted of the second degree murder of Andy James and convicted of the second degree murder of Brandon Ramdeen. Edwin Modeste was convicted of the manslaughter of Brandon Ramdeen.

[8] One further man, Anski Julien, has not yet been tried, but is charged with the manslaughter of Brandon Ramdeen.

Positions of the Parties

[9] There is no real dispute that a confrontation occurred between Leon Alexander and Andy James in the early morning hours of June 21, 2009. And there is no real dispute that a confrontation occurred between Edwin Modeste and Brandon Ramdeen. It is the theory of both the Crown and defence that Kimron Bengy stabbed Brandon Ramdeen. What is in issue in this trial is the identity of the other participants in the two altercations and the actions of each participant.

[10] The theory of the Crown with respect to the stabbing of Andy James is that Leon Alexander became angry at Mr. James over a perceived insult. In anger, Mr. Alexander attacked and intentionally stabbed Mr. James either alone or in concert with another person. The alternative theory of the Crown is that Mr. Alexander knowingly helped or encouraged another person to stab Mr. James.

[11] Therefore, the Crown’s position is that I should be satisfied that Leon Alexander is guilty of second degree murder either as a principal or as a party.

[12] Alternatively, the Crown submits that Leon Alexander is guilty of manslaughter as a result of his participation in an assault on Andy James in which another person stabbed Mr. James and in circumstances where the harm to Mr. James was reasonably foreseeable.

[13] The theory of the Crown with respect to the stabbing of Brandon Ramdeen is that Mr. Ramdeen went into the parking lot to find the individuals responsible for stabbing Andy James. Brandon Ramdeen approached Mr. Modeste. As he approached Mr. Modeste, Mr. Ramdeen was attacked by Mr. Modeste, Leon Alexander, Anski Julien, Edmund Benjamin and Kimron Bengy. He was punched and kicked by all of the men. He was stabbed by Kimron Bengy.

[14] Therefore, the Crown submits that both Mr. Alexander and Mr. Benjamin are guilty of manslaughter as a result of assaulting Mr. Ramdeen or intentionally aiding in an assault in circumstances where a reasonable person would realize that the assault would lead to non-trivial bodily harm or as result of engaging in the common unlawful purpose of assaulting Mr. Ramdeen in circumstances where it was foreseeable that Mr. Bengy would stab Mr. Ramdeen.

[15] The position of Mr. Alexander is that he had no involvement in either stabbing. He testified and admitted involvement in two confrontations with Andy James. There was a verbal altercation on the boat and a further confrontation in the parking lot when he attempted to assault Mr. James but was intercepted and prevented from doing so. He did not stab Mr. James and did not know that anyone else was going to stab him. He was not involved in the Brandon Ramdeen altercation at all.

[16] Mr. Benjamin’s position is that I should not be satisfied beyond a reasonable doubt that Mr. Benjamin was involved in the fight with Mr. Ramdeen. Alternatively, he submits that even if I am satisfied that he participated in the fight, I should not be satisfied that he acted in concert with Mr. Bengy or with any knowledge of Mr. Bengy’s possession of a knife or Mr. Bengy’s intention of using that knife on Mr. Ramdeen. Mr. Bengy’s actions in stabbing Mr. Ramdeen were not foreseeable.

Summary of approach to the determination of the case

[17] In order to determine this case, it is necessary for me to review the testimony of each witness in relation to the relevant events and to assess that evidence in the context of the evidence as a whole. The internal consistency and plausibility of the testimony, its consistency with previous statements by the same witness and its consistency with the other evidence in the case must be considered in determining the facts in this case.

[18] My decision will be divided into four main parts: Part I, Legal Principles; Part II, Summary of the Evidence; Part III, Assessment of the credibility and reliability of the witnesses; and, Part IV, Analysis and Findings.

Part i - legal principles

[19] There are certain legal principles that I must apply in deciding whether the Crown has proven the guilt of Mr. Alexander or Mr. Benjamin. I will now review some of those principles before moving to a review of the evidence and then to my analysis and findings.

Burden of Proof

[20] In this case, as in any criminal case, the two accused men are presumed to be innocent and the Crown bears the burden of proving the guilt of each accused on each charge beyond a reasonable doubt.

[21] There are two accused in this trial and I must consider each of them separately in determining whether the Crown has proven guilt beyond a reasonable doubt.

Evidence as a Whole

[22] In determining the guilt or innocence of Mr. Alexander and Mr. Benjamin I must consider and weigh the evidence admissible against each of them cumulatively and not in isolation.

Credibility and Reliability

[23] As the trier of fact in this case, I must assess the credibility and reliability of the witnesses. I may believe all, some, or none of the testimony of any witness and, similarly, I can accord different weight to different parts of the evidence that I accept.

[24] Doherty J.A. in R. v. Morrissey[^1] explained the difference between credibility and reliability, saying, “Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.”

[25] Prior statements that are inconsistent with the testimony of a witness may be relevant to the assessment of the credibility of a witness. I must also consider any explanation offered by the witness for the inconsistency. Prior lies under oath are significant in assessing the credibility of a witness.

[26] Reliability may be affected by the conditions under which the observations were made and the ability of the witness to remember the events.

Identification Evidence

[27] The recognized frailties of identification evidence have led the courts to require that I approach with particular care the evidence of eye-witnesses. As summarized by Ducharme J. in R. v. Powell[^2] :

[15] Obviously, where an eye-witness expresses confusion or uncertainty about their identification, this undermines the weight that can properly be accorded it. However, the converse is not true. As Arbour J. stated in R. v. Hibbert (2001), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) at 148 there is a "very weak link between the confidence level of a witness and the accuracy of that witness."… Consequently, in assessing the probative value of…eyewitness identification, I should be guided by the following factors which have been recognized by our courts as useful in assessing the value of identification:

1. How much time has lapsed between the identification and the events being described by the witness? Generally speaking, the longer the intervening period of time, the greater the risk of error. Did the witness do anything to lessen this concern such as taking notes contemporaneously to the sighting or reporting her observations to another person or the police in a timely way?

2. Is the witness identifying someone they know or someone they have never seen before? If the witness has seen the person before, how often have they seen him and in what circumstances? If the witness did not previously know the person being observed, their identification should be viewed with greater caution. On the other hand, the witness's previous acquaintance with the person being observed may make the identification particularly reliable.

3. The physical circumstances of the sighting. This involves a consideration of such factors as the distance between the witness and the person seen, the sight lines involved, whether the view was clear or obstructed in any way, the lighting at the time of the sighting, whether the witness and the person observed were moving or stationary, etc.

4. The duration of the observation, was it just a "fleeting glance" or was it something that took place over a longer time? Identifications based on a "fleeting glance" are regarded with greater caution.

5. The emotional state of the witness at the time of the sighting. Was the witness surprised to see the person? Was the witness under any psychological stresses such as fear at the time of the observation. Was the witness's attention distracted by various things or did she have [an] opportunity to observe the person with care?

6. What is the quality of the witness' description of the person? Is it rich in specific detail or is it merely a generic listing of such similar characteristics as weight, height, race, etc. The more generic the description, the less probative it is. Has the witness' description remained consistent in its material details or has the witness contradicted herself about important details?

7. How does the witness' description compare to [those] provided by other witness? Where there are competing, inconsistent descriptions one or all of them may have to be viewed with caution. Similarly, where several witnesses are equally well situated to observe the person and one or more are unable to do so, the purported identification may be suspect.

8. Has the eye-witness been exposed to other images of the person being identified? Where the eye-witness has previously seen composite drawings, photos, video clips or other representations of the person the trier of fact must be alive to the possibility that the witness is, intentionally or unintentionally, identifying, not the person they originally saw, but rather the person depicted in such images.

9. What sort of pre-trial identification process did the eye-witness participate in? Given, the almost negligible value of an in court identification, pre-trial identification processes are of critical importance in any assessment of the probative value of an eye-witness' identification. It is therefore essential that these processes are fair and unbiased in order that the eye-witness' identification occurs, "without suggestion, assistance or bias, created directly or indirectly." Thus, courts have commented adversely on the negative effects of such procedures as showing eye-witnesses only a photograph or photographs of a single suspect; suggestive photo arrays or in person lineups, "show up" identifications, etc. Thus, a trier of fact must carefully consider both the possibly suggestive nature of the procedures as well as whether the details of the eye-witness' account or their confidence in their identification have evolved or changed through this process.

10. Has the witness's identification been influenced by that of other witnesses? Thus, it is important that eye-witnesses participate separately in the pre-trial identification processes. Similarly, neither the police, victim support personnel, nor Crown Attorneys should comment on the identifications made by an eye-witness or tell her the details of any other eye-witness's evidence. Finally, a trier of fact should be alive to the possibility of collusion amongst eye-witnesses, intentional or unintentional.

11. How does the eye-witness' description of the person compare with their appearance at the time of the incident? As already mentioned a generic description is of little probative value. However, where the description is more detailed and those details are consistent with the appearance of the person at the relevant time, the identification may be entitled to greater weight. This is particularly true, if the witness identifies some distinctive feature in the person's appearance, physique, speech, mannerisms, etc. On the other hand, regardless of the number of similar characteristics in an eye-witness' description, an eyewitness description that contains dissimilarities to the accused is either valueless or exculpatory.

12. Where cross-racial identification is involved the trier of fact must be alive to the possibility that this might cause the eye-witness some difficulty or constitute a reason to regard their evidence with greater caution.

13. Is there any other reliable circumstantial evidence capable of confirming or supporting the identification evidence of identification in a material particular? The existence of such evidence "can go a long way to minimizing the dangers inherent in eyewitness identification."

[citations omitted]

[28] In considering the factors that impact on the assessment of the testimony of the many witnesses who saw some or all of the events in this case, I also adopt the comments of the trial judge in R. v. Kish.[^3] Kish was a murder trial before a judge alone which involved the testimony of many eyewitnesses. Nordheimer J. made the following observations which apply equally to the case before me:

None of the witnesses are one hundred percent clear in their recollections of what they saw nor are their recollections entirely consistent from one witness to the next. No one should be surprised at either of those realities. No one remembers every detail of what they observe. No one sees an event in exactly the same way as another observer of that same event. No one remembers the very same things as others do. All of that is simply human nature.

Further, there were some variations in what some of the witnesses said that they saw between the different times in which they have been called upon to give their evidence. In most cases, these witnesses have been required to recite these events at least three times: first to the police; then at the preliminary hearing; and finally at this trial. Those renditions have occurred over a period of about three and one-half years – a passage of time that brings its own problems to the quality of the evidence in this case. Delay does not enhance the quality of any witness’ evidence.

Those are realities that occur in most criminal cases. They are at least part of the reason why any trier of fact, whether judge or jury, is permitted to accept some, none or all of any witness’ evidence. Put simply, a witness’ evidence does not have to be taken on an all or nothing basis.

[29] There are some factors common to all witnesses in this trial, as in Kish, that affect the reliability of the testimony. One is the passage of over three years between the events and the trial. Obviously, memories fade with time.

[30] Another factor affecting the reliability of the observations of all of the witnesses was the condition of the parking lot when the stabbings occurred. The parking lot was dark in the early morning hours of June 21, 2009. There were cars moving and there was noise. The situation was dynamic, fast-moving and, for most people involved, stressful. These were factors that may have impacted on the ability of the witnesses to reliably perceive the events.

[31] Another factor affecting the reliability of the evidence of many of the witnesses and which I will discuss further below is that from the time immediately following the stabbings and over the months following the stabbings there was a great deal of discussion in the community about what had happened. This is not surprising as these were shocking events and it is natural that they would be discussed. However, such discussion has the potential to contaminate the memories of witnesses as it may be difficult for a witness to distinguish between what s/he actually saw and what s/he was told by others. This is particularly true when the witness is asked about the events after the passage of time.

Post-offence Conduct

[32] The Crown relies in this case on the conduct of Mr. Alexander in leaving the parking lot immediately after the stabbing of Brandon Ramdeen and leaving in someone else’s car as circumstantial evidence of guilt. The Crown also relies on the evidence that Mr. Benjamin was seen running from the area of the stabbing of Brandon Ramdeen as evidence that Mr. Benjamin was involved in the assault, that is, as evidence of identity and also as evidence consistent with a consciousness of having committed a culpable act.

[33] As set out by the Court of Appeal for Ontario in R. v. Peavoy,[^4] at paragraphs 26-27:

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact to determine what inference, if any, should be drawn from the evidence.

Often, after-the-fact conduct may be relevant to the issue of the identity of the person who committed the crime: White, supra; R. v. Dunn (1990), 1990 1027 (BC CA), 56 C.C.C. (3d) 538 (B.C.C.A.); R. v. Tzimopoulos (1986), 1986 152 (ON CA), 29 C.C.C. (3d) 304 (Ont. C.A.). Where, for example, a person denies being the person who engaged in an assault on another person, but was seen fleeing from the scene of the crime by someone who knew him, the trier of fact may (not must) conclude that flight from the scene was more consistent with a person who had committed a culpable act. The evidence is, therefore, relevant to the question of the identity of the person who committed the assault. On the other hand, where the accused admits being the person engaged in a fight, after-the-fact conduct will add nothing to the issue of identity and has no relevance in that regard.

[34] The post-offence conduct evidence in this case must be weighed in the context of all of the evidence, including the explanation offered by Leon Alexander and the evidence that many other people fled the scene of the stabbing.

Defence Evidence

[35] In this trial Mr. Alexander testified and called evidence. He denied committing the offences. He also called evidence to show that the offences with which he is charged were committed by a third party, Kimron Bengy. In accordance with the principles set out in R. v. W. (D.)[^5], if I accept this evidence I must acquit him. Even if I do not accept this evidence, if it raises a reasonable doubt I must acquit him. Even if I reject this evidence I can only convict him if the other evidence in this case satisfies me beyond a reasonable doubt of his guilt.

[36] The assessment of a defendant's credibility is not to be regarded as a credibility contest between the defendant, on the one hand, and the Crown witnesses on the other hand. Nor may I apply a more stringent test of scrutiny to the defendant's testimony, or the defence at large, in determining the guilt, or innocence, of the defendant. The assessment of the defence evidence is not made in isolation but the evidence must be assessed in the context of all of the evidence.

[37] With these legal principles in mind I will move to my summary of the evidence. In my summary of the evidence I will set out the narrative but I will not set out all of the details of the evidence or the matters that go to credibility and reliability of the witnesses which I will deal with separately.

part ii- Summary of the Evidence

i) Relationships and background

[38] In order to understand the context of these events, some background and context is necessary. I will briefly outline some of the background, including the relationships between the accused, the witnesses and the deceased. This background is established by evidence that is not in dispute.

[39] The cruise on June 20, 2009 was called the “Island Link-up”. It was an annual event attended by about 300 people, many from Toronto’s Grenadian Canadian community. The event was organized and promoted by a man named Eric Mitchell, also known as “Scratch Dog”.

[40] Witnesses testified that the attendees began to gather in the parking lot near the cruise ship around 8:00 p.m. on June 20, 2009. The boat did not leave until around 10:00 p.m.

[41] In the hours leading up to the cruise, people socialized in the parking lot, consumed alcohol and listened to music.

[42] Witnesses testified that the cruise was a successful event. They testified that DJs played music during the cruise, alcohol was consumed, food was served and there was dancing.

[43] The boat docked at 2:05 a.m. on June 21, 2009.

[44] Among the DJs who were playing music on the cruise that night was a DJ group known as “Greenz Connection”. The DJs who formed Greenz Connection were Anski Julien and Edmund Benjamin.

[45] It was a common practice for the DJ groups to hand out flyers to advertise their events. The flyers often had the photographs of the DJ’s. Anski Julien and Edmund Benjamin were well-known to many in the Grenadian Canadian community because of their attendance at events and because of their advertising.

[46] Greenz Connection had an office near Eglinton and Dufferin. In the same plaza was a bar called Spice Isle Bar. The Spice Isle Bar was a family run business owned by the family of Edwin Modeste. Mr. Modeste often worked at the bar.

[47] Spice Isle Bar was a popular bar for many in the Grenadian Canadian community and Edwin Modeste was known to many people because of his connection to the bar.

[48] Leon Alexander was a friend of Anski Julien, Edmund Benjamin and Edwin Modeste. The four men were known to spend time together. Kimron Bengy was friend of the group and particularly of Edwin Modeste. He was known to spend time at the Spice Isle Bar.

[49] Anski Julien had been married to Anna George. They had separated around 2008 and by June 2009 Anna George was in a relationship with Andy James.

[50] Anski Julien had previously been charged with assaulting Anna George. Andy James was a witness to the assault on Anna George. Anna George and Andy James had attended court in early 2009 in relation to the charge against Anski Julien.

[51] Many of the persons charged, the witnesses and others referred to in the testimony in this trial had nicknames. Leon Alexander was known as ‘Burja’ or ‘Buja’; Edmund Benjamin was known as ‘Shaggy’; Kimron Bengy was known as ‘Sico’; Dexter Regis was known as ‘Boss’; Kitson Robertson was known as ‘Sic’; Eric Mitchell was known as ‘Scratch Dog’; Kenrick Williams was known as ‘Bob’ or ‘Kenny’; Dixon Henry was known as ‘Rambo’. In these reasons I will, in the interests of clarity, use the proper names of the parties although several witnesses knew these individuals involved only by their nicknames.

ii) Confrontation between Leon Alexander and Andy James on the Cruise Ship

[52] The events that led to the stabbing deaths of Andy James and Brandon Ramdeen were set in motion by an incident that occurred on the cruise ship between Anna George, Andy James and Leon Alexander. Five Crown witnesses testified about this incident. Leon Alexander also testified about the events that occurred on the cruise ship. I will summarize the evidence of the Crown witnesses about the confrontation on the boat and I will deal separately with the evidence of Leon Alexander.

Anna George

[53] Anna George was 30 years old when she gave evidence. In June of 2009 she was the girlfriend of Andy James. She was the ex-wife of Anski Julien. She knew Edmund Benjamin because he was the business partner of her ex-husband. She knew Leon Alexander and had known him since they attended high school together in Grenada. She knew Edwin Modeste ‘to say Hi’, and had known him for 3 to 4 years in 2009. Ms. George had been dating Andy James since 2008. Ms. George described the incident in which Anski Julien assaulted her and to which Andy James was a witness. She testified that after she and Mr. James attended court to testify against Mr. Julien, Leon Alexander, Edmund Benjamin, Edwin Modeste and Anski Julien stopped speaking to them.

[54] Ms. George attended the boat cruise on June 20, 2009 with Andy James and Kenrick Williams. Mr. Williams drove. Ms. George had one drink on the cruise. On the cruise they had food and danced. While on the top level, Ms. George saw Edmund Benjamin, whom she knew as ‘Shaggy’, handing out flyers. Mr. Benjamin tried to give Ms. George a flyer but she did not take one.

[55] Anna George testified that during the cruise, Leon Alexander touched her three times. The first time that Mr. Alexander touched her, he put his hand or arm on her shoulder and said words to the effect of “we’re still friends”. Ms. George testified that she understood his comment to mean that he did not want her conflict with Mr. Julien to impact on their friendship. Ms. George testified that Andy James was close by when Mr. Alexander put his hand or arm on her shoulder and said those words. Ms. George said nothing in reply to Mr. Alexander. Mr. James also said nothing.

[56] Later in the evening, Mr. Alexander walked by Ms. George while she was on the dance floor with Mr. James. He touched her on the arm, just above the elbow as he passed by. Shortly thereafter, he passed back in the opposite direction and again touched her on the arm. Ms. George testified that the physical contact made her uncomfortable. She testified that Mr. James said that he didn’t like the way Mr. Alexander touched her and that he was going to speak to him. The boat had docked and they went downstairs to leave the boat.

[57] Ms. George testified that as they were waiting to leave the boat, Mr. Alexander passed by the area where she and Mr. James were standing. Andy James was to her right and Mr. Alexander passed by, also to her right. Mr. James stopped Mr. Alexander by tapping Mr. Alexander’s right shoulder. He was standing behind Mr. Alexander at the time. Mr. James said to Mr. Alexander, “When you see my girlfriend don’t touch her, don’t talk to her.”

[58] Ms. George testified that Mr. Alexander stopped and turned to Mr. James. He yelled and was behaving in an aggressive manner. Among other things, Mr. Alexander said words to the effect of, “I’ll deal with you. I’ll shoot you. I’ve got a gun.”

[59] Ms. George testified that Mr. Alexander was trying to hit Mr. James. At this point, Kenrick Williams and a man named Ritchie intervened and held Mr. Alexander. After this occurred, Alex Lewis also came by. Kenny and Ritchie, one on each side of Mr. Alexander, moved Mr. Alexander further into the boat. After they had done this, Ms. George testified that Mr. Alexander broke loose and came running at Mr. James and Ms. George, again trying to hit Mr. James. He was waving his hands. At this point, Mr. Alexander’s hand hit Ms. George on her head.

[60] Ms. George testified that Kenrick Williams took Mr. Alexander off the boat. She thought that Alex Lewis had helped Kenrick.

Kenrick Williams

[61] Kenrick Williams was 38 years-old when he testified. He confirmed that his nicknames were ‘Bob’ and ‘Kenny’.

[62] He described Andy James as his best friend. He spoke to him every day. Collins George was a close friend. Mr. Williams also knew Brandon Ramdeen through friends. He described Mr. Ramdeen as ‘just a friend’. He described Dexter Regis as a friend. He also described Leon Alexander, Edmund Benjamin, Edwin Modeste and Anski Julien as friends. They were people he would see at parties or at the bar.

[63] Mr. Williams knew Mr. James’s girlfriend Anna George. On June 20, 2009 he attended the Island Link-up boat cruise with Andy James and Anna George. He drove his car to the cruise. Mr. Williams did not go right onto the boat when he arrived. He saw people he knew and spent time speaking to them. He saw Brandon Ramdeen, Andy Natoo and others. He did not consume any alcohol or drugs before the cruise or during the cruise. He saw Andy James drink but could not speak to his level of intoxication.

[64] Kenrick Williams testified that near the end of the cruise, Andy James had said to him that Anna George had told him that whenever Mr. Alexander passed her, he kept “bumping” into her. Mr. Williams testified that he told Mr. James not to worry about it. A couple of minutes after this, he was waiting to leave. At this point, Andy James went to Mr. Alexander and said, “Whenever you see my girlfriend, have nothing to do with her.” Mr. Williams was in the corner with Andy James and Anna George and Ritchie when this occurred.

[65] Mr. Williams testified that Mr. Alexander replied to Mr. James, “You think I’m Anski.” Mr. Williams described Mr. Alexander as being angry and aggressive. He testified that he heard Mr. Alexander say, “I got my gun in my car”, or ‘something like that’. Mr. Williams was asked to recount the exact words spoken by Mr. Alexander and testified that Mr. Alexander said “I have a gun in my car.”

[66] Mr. Williams testified that Mr. Alexander was trying to “get at” Andy James. At this point, Alex Lewis came by and said, “We are not fighting on this boat tonight.” Mr. Lewis then walked away. Alex Lewis is Mr. Williams’ cousin.

[67] Mr. Williams testified that after Alex Lewis walked away, he grabbed Mr. Alexander from behind in a bear hug and took him to cool down off the boat.

[68] Mr. Williams testified that he did not observe Mr. Alexander to have any physical contact with Mr. James on the boat during the confrontation. He did not see Mr. Alexander strike Anna George on the boat.

[69] Mr. Williams, although he gave a police statement close in time to these events, did not tell the police in that statement that Mr. Alexander said that he had a gun in his car. He explained that he did not think that a gun had anything to do with what happened.

[70] The exit from the boat consisted of a gangplank down to the dock and a walkway through to a covered area, referred to through the trial as a “shed”. Mr. Williams described taking Mr. Alexander to the end of the shed where he saw Edwin Modeste. Edwin said, “I got it.” Mr. Williams left Mr. Alexander with Edwin Modeste. At the time, he did not see Anski Julien.

[71] Kenrick Williams testified that after he left Leon Alexander with Edwin Modeste, he went into the parking lot. People had seen him take Leon Alexander off the boat and they were questioning him about it. Around this time he saw Anski Julien and told him to ‘tell [his] boys to chill out.’

Alex Lewis

[72] Alex Lewis was 37 years old when he testified. He knew Edmund Benjamin, Anski Julien and Leon Alexander. He knew Mr. Julien and Mr. Benjamin as part of Greenz Connection. He knew Mr. Alexander from seeing him at the Spice Isle Bar.

[73] He was a good friend of Eric Mitchell, the organizer of the cruise.

[74] Mr. Lewis was a friend of Andy James. In 2009 he knew that Andy James was dating Anna George. He knew Anna George from Grenada.

[75] Mr. Lewis attended the cruise on June 20, 2009.

[76] Alex Lewis testified that at the end of the cruise he was approaching Andy James to say “hello”. He realized there was a confrontation between Mr. Alexander and Andy James. Andy James was in front of Mr. Alexander. There was one foot or so separating the two men. Mr. Lewis testified that Mr. Alexander was speaking loudly, but Mr. Lewis could not hear what he was saying. Mr. James appeared laid back and calm. All that Mr. Lewis heard Mr. James say was, “Get away from my face.” Mr. Lewis saw no physical contact between Mr. Alexander and Mr. James.

[77] Mr. Lewis testified that he held Mr. Alexander back with a couple of other guys. He said to Mr. Alexander, “This is not a place for that.” Mr. Lewis testified that he did not know who else held Mr. Alexander. Mr. Lewis, in cross-examination agreed that he knew a man known as ‘Bob’ but denied knowing anyone by the name of ‘Kenrick Williams.’ He testified that he had known ‘Bob’ about 7 years. Ultimately Mr. Lewis conceded that he and ‘Bob’ were ‘probably’ cousins. He continued to deny knowing who helped to restrain Leon Alexander on the boat and who took him off the boat.

[78] He said that Mr. Alexander stayed aggressive for a couple of minutes, but then became calm. The others took Mr. Alexander to another location. Mr. Lewis stayed with Andy James and Anna George. He left the boat with Anna George and Andy James. They were walking in front of him.

Ryan Noel

[79] Ryan Noel was 45 years old when he testified. He was very good friends with Eric Mitchell whom he had known since childhood. He also knew Andy James quite well having met him through Eric Mitchell. He did not know Brandon Ramdeen. He knew of Greenz Connection. He knew Edmund Benjamin and Anski Julien as the DJs and knew Edwin Modeste and Leon Alexander .

[80] Mr. Noel went alone to the cruise on June 20, 2009. He arrived around 8 pm and went right on to the boat. He had one beer during the cruise.

[81] Ryan Noel also testified that he saw the confrontation on the boat. At the end of the cruise he saw Mr. James standing against the wall near the bar on the lower level of the cruise ship. People were standing around Mr. James. Mr. Alexander was in front of Mr. James, quite close to him, directly in his face. In his testimony, Mr. Noel demonstrated that Mr. Alexander’s fingers were level to Mr. James’ face and his fingers were open. There was no physical contact observed by Mr. Noel at this point. Mr. James, he testified, was doing nothing. He was simply standing.

[82] Mr. Noel testified that Alex Lewis then came and grabbed Mr. Alexander around his waist and took him away from Mr. James. Mr. Noel testified that he saw Mr. Lewis take Mr. Alexander off the boat. He said that Andy James left the boat about one to five minutes after this occurred. Mr. Noel testified that there were people in front of and behind Andy James, but he did not know who they were. Mr. Noel was certain that Alex Lewis had no help taking Mr. Alexander off the boat. Mr. Noel did not hear Mr. Alexander yell anything at Mr. James.

Michelle Phillip

[83] Michelle Phillip was 33 years old when she testified. At the time she knew Andy James and had known him for about 6 years. He was a friend. Mr. James’s girlfriend Anna George was also a friend. Ms. Phillip knew of Brandon Ramdeen but did not know his name in June 2009. She knew Edwin Modeste and knew that his family owned the Spice Isle Bar. Ms. Phillip knew Anski Julien through her sister. She always went to the parties of Anski Julien and Mr. Julien and his friends would come to her parties. She knew Mr. Julien to be in business with Edmund Benjamin. She had known Leon Alexander for a long time. They went to high school together in Grenada.

[84] Michelle Phillip attended the boat cruise with her husband. She did not drink or consume drugs.

[85] Michelle Phillip testified that she observed an interaction between Andy James and Leon Alexander at the end of the cruise. She said that near the end of the cruise, she saw “Kenny”, or Kenrick Williams, come between Andy James and Leon Alexander. Michelle Phillip testified that it looked like Mr. Alexander wanted to fight with Andy James. She testified that Andy James was “just standing there”. Mr. Alexander tried to get at Andy James more than three times. The next time that she saw Mr. Alexander, Kenrick Williams was carrying him off the boat. Mr. Williams’s hands were around Mr. Alexander’s waist. Ms. Phillip saw Mr. Williams put Mr. Alexander down in front of the shed. Ms. Phillip testified that Mr. Alexander tried to get back on the boat about 10 times, but Edwin Modeste and Anski Julien held him back. Ms. Phillip was about 13 feet away when she made these observations. She was looking for her husband at the time.

iii) Confrontation in the Parking Lot between

Andy James and Leon Alexander

[86] After Leon Alexander was taken off the boat and Andy James disembarked there was a further confrontation between the two men. It was at the end of this confrontation that Mr. James was observed to have suffered stab wounds to his abdomen. Several witnesses testified about the nature of the confrontation between Mr. Alexander and Mr. James in the parking lot. I will now summarize that evidence.

Kenrick Williams

[87] Kenrick Williams testified that after he left Leon Alexander with Edwin Modeste, he went into the parking lot. People had seen him take Leon Alexander off the boat and they were questioning him about it. It was around this time that he saw Anski Julien and told him to ‘tell [his] boys to chill out.’

[88] A little while later he saw Mr. Alexander making his way towards Andy James and Anna George. Mr. Alexander was walking quickly. Andy and Anna at the time were closer to the exit of the boat and Mr. Alexander was further into the parking lot. Mr. Williams saw Mr. Alexander approach Andy James. Mr. Williams believed that Mr. Alexander and Andy James had a fist fight. They threw a couple of punches at each other. He could not tell if their hands were open or closed. Mr. Williams started towards them. He watched them as he went towards them. He saw them hitting at each other around their upper bodies. He did not see them fall to the ground.

[89] Mr. Williams testified that he was not far from Mr. Alexander and Mr. James and it did not take him long to reach them. Mr. Williams got to the two men and pulled Mr. Alexander away from the scene. At the time, he noticed Mr. Modeste standing in the area and he also saw others standing in the area. He did not know the others. Mr. Williams did not see anyone other than Andy James and Leon Alexander fighting. Mr. Alexander was aggressive and Andy James was fighting back. Mr. Williams did not hear any words spoken. Mr. Williams did not see Edwin Modeste or anyone else have any physical contact with Andy James. He did not see where Mr. Modeste went after the fight ended. Mr. Williams testified that he saw Andy James and Anna George walk away.

[90] Mr. Williams testified that he saw no weapon in the hands of Leon Alexander and he believed that he would have seen a weapon if Mr. Alexander had one. He never saw Mr. Alexander behind Mr. James.

[91] Mr. Williams testified that the fight ended when he took Mr. Alexander away. When he first took him away, Mr. Alexander was aggressive. Later Mr. Alexander calmed down. He testified that Mr. Alexander was struggling as he pulled him away from Mr. James but that he stopped struggling when they had moved away. Mr. Williams took Mr. Alexander far enough away that he was away from the situation. Mr. Williams stayed with Mr. Alexander and said, “Chill, chill, chill. That ain’t called for.”

[92] Mr. Williams testified that he and Mr. Alexander were standing in the same area after that, but Mr. Williams was not holding Mr. Alexander. Mr. Williams testified that he and Mr. Alexander were standing, ‘pretty close by.’ While they were in the same area, Collins George came by and told Mr. Williams that Andy James had been stabbed. After Collins George told him this, Dexter Regis came by with a baseball bat. Mr. Williams testified that he saw Dexter Regis push Mr. Alexander and swing the bat at Mr. Alexander. Mr. Williams heard Mr. Regis say, “Who stabbed my brethren?”

[93] Mr. Williams saw no contact between Leon Alexander and Anna George after the fight between Mr. Alexander and Mr. James. He did not see Anna George hold Mr. Alexander’s shirt and slap his face.

Anna George

[94] Anna George testified that after the confrontation on the boat, she and Andy James left the boat. As they walked through the ramp and shed area, people were saying things to them like, “Watch your back.” Michelle Phillip was one of the people who told them to watch their backs. Anna George testified that she continued walking through the parking lot. Andy James was walking behind her. As they walked through the parking lot towards the car they had come in, three men came running towards them. The three men were Leon Alexander, then Edwin Modeste and then a third man. The third man was a dark-skinned black man, around Ms. George’s height (5’6”) and he was wearing a light coloured shirt. Mr. Modeste was a couple of seconds behind Mr. Alexander and the third man was a couple of seconds behind Mr. Modeste.

[95] Ms. George testified that Andy James was walking behind her and there was a crowd behind Mr. James. She lost sight of the three men as they went into the crowd. At the point that the men ran by, Michelle Phillip came by and brought Ms. George further into the parking lot, saying something like, “Don’t bother about it. Don’t worry about it.” Ms. George turned and walked with Michelle Phillip about two car lengths. This took about one minute. She then walked back towards the boat. As she walked back towards the boat, she saw Leon Alexander. Ms. George testified that she was angry and she told Mr. Alexander, “If Andy says don’t touch me, you shouldn’t have a problem with that.” Ms. George testified that she grabbed Mr. Alexander by the shirt when she said that. Ms. George denied punching and slapping Mr. Alexander. Ms. George testified that Mr. Alexander did not respond and he was calm.

[96] Ms. George testified that after the conversation with Mr. Alexander, she went back into the parking lot to the car. No-one was at the car. She then walked back to the boat again. On her way, she met Kenny and Ritchie and asked if they had seen Andy and they said, “No.” She went further back towards the boat to look for Andy. She saw him with his shirt off and tied around his abdomen. He was bleeding from his abdomen. At that point, Eric Mitchell was there. There were others who were also there, but she does not know who they were. They headed towards Eric Mitchell’s car in order to go to the hospital.

Lois Harewood

[97] Lois Harewood was 36 years old when she testified. She knew Mr. Benjamin and Mr. Julien to say “hello” and from parties. She also knew Edwin Modeste and Leon Alexander to see them. She recognized Andy James and Brandon Ramdeen from seeing them at parties, but did not know their names. Ms. Harewood attended the cruise on June 20, 2009 with three friends. She had 2 drinks on the cruise.

[98] Lois Harewood testified that she and her friends were among the first people off the boat. She was standing by the shed or exit area after the cruise. She had her back to the boat. She heard someone yell, “Relax, relax!” She turned and saw Anski Julien pulling Leon Alexander and telling him to relax. Mr Alexander appeared to be trying to get back on the boat. Ms. Harewood testified that she believed that that was his intention because of the direction that he was headed. He was heading back towards the boat, but he was not headed through the shed. Mr. Julien appeared to be trying to calm Mr. Alexander. Ms. Harewood testified that there were possibly two others also trying to calm and control Mr. Alexander.

[99] Ms. Harewood saw Andy James leave the boat. He walked past Ms. Harewood and her friends and went between two cars. Ms. Harewood next saw Mr. Alexander and Mr. James scuffling. She did not see how the fight began. She did not see where Mr. Alexander came from. Ms. Harewood described the actions of Mr. James and Mr. Alexander as “a lot of hand movement”. She could not see who was doing what. She could not see if Mr. Alexander had anything in his hands. She could see that there was physical contact between Mr. James and Mr. Alexander. The scuffle lasted less than a minute. It was more like a ‘couple of seconds.’ The fight occurred very close to Ms. Harewood.

[100] Ms. Harewood saw people trying to pull the two men apart. She saw one person pulling Mr. James by the shoulder. She saw three men pulling Leon Alexander. She could not remember who the three men were who were pulling Leon Alexander out of the fight. While she had originally said that one of the men was Anski Julien she later realized that she was mistaken. She did not see Edmund Benjamin involved at all.

[101] She could not give a detailed description of the man pulling Andy James out of the fight. She could see that he was a black man but could not otherwise describe him because he had his back to her. She saw him use his hands to pull Mr. James by his shoulder. She did not see a weapon in the hands of the person pulling Mr. James. She did not see a struggle between Mr. James and the man who was pulling him. Mr. James appeared to be going back calmly. Ms. Harewood did not see what happened to the man who was pulling Mr. James after the fight separated.

[102] Ms. Harewood saw Mr. Alexander being pulled into the parking lot. Following this, Mr. James stepped back and said, “I can’t believe that guy just jumped me.” Mr. James said that two times. He then pulled up his shirt and said, “I can’t believe that guy just stabbed me.” Ms. Harewood testified that Mr. James seemed surprised. This was less than a minute after Leon Alexander had been pulled away. At this point, Brandon Ramdeen approached Mr. James. Ms. Harewood told Mr. Ramdeen that he should get medical attention for Mr. James. She then went to look for Eric Mitchell because she had seen Mr. Mitchell with Andy James and wanted to tell him what had happened.

Alex Lewis

[103] Alex Lewis testified that he walked off the boat after Andy James and Anna George. He stopped to talk to friends and Andy James and Anna George kept walking. Mr. Lewis did not watch them after they walked into the parking lot. Mr. Lewis was by the shed talking for about three minutes. He then heard that Andy James had been stabbed. Mr. Lewis went to get Eric Mitchell. After he got Mr. Mitchell, they headed towards the parking lot. Mr. Lewis saw Andy James about five feet from the shed. People were with him at the time. He believed that Anna George was there at the time. There was blood in Mr. James’ stomach area. Mr. Mitchell said that Mr. Lewis should drive Mr. James to the hospital and Mr. Mitchell gave Alex Lewis his car keys. Mr. Lewis went to get the car in order to bring it to Mr. James. However, Andy James, with Anna George, came to where the car was parked.

Eric Mitchell

[104] Eric Mitchell was 42 years old when he testified. He was the organizer of the Island Link-up Boat Cruise on June 20, 2009. He was a promoter and DJ. His nickname was “Scratch Dog”. Mr. Mitchell had known Mr. Benjamin for more than 20 years in June 2009. They had a good relationship. Mr. Mitchell attended events organized by Mr. Mitchell and Mr. Mitchell attended events organized by Mr. Benjamin. Mr. Mitchell was not as close to Anski Julien but he knew him ‘to say hi.’

[105] Mr. Mitchell knew that Edwin Modeste and Leon Alexander were associated with Greenz Connection because they were close with Mr. Julien and Mr. Benjamin. Mr. Mitchell knew Edwin Modeste through the Spice Isle Bar. Mr. Mitchell went there often. Mr. Mitchell did not know Leon Alexander well. He knew him ‘to say “hi”’.

[106] Andy James was a good friend of Mr. Mitchell’s in June 2009. They spoke on the phone and visited each other’s homes. Mr. Mitchell did not know Brandon Ramdeen.

[107] Mr. Mitchell drove his SUV to the cruise that night with 2 neighbours. He arrived early to bring food and sell tickets. Mr. Mitchell had a drink with Andy James in the parking lot before the cruise. He could not say how much he drank on the cruise but testified that he was not intoxicated.

[108] Eric Mitchell testified that Alex Lewis came to him at the end of the cruise when he was playing music and told him his “boy got stabbed.” Mr. Mitchell asked who was stabbed and Mr. Lewis said it was Andy. Mr. Mitchell stopped playing the music and left the boat. When he got outside a lot of people were around Mr. James and Anna George. He could see that Mr. James was bleeding. Mr. Mitchell gave his keys to Alex Lewis. Anna George and Mr. Mitchell took Andy James to Mr. Mitchell’s car.

[109] Mr. Mitchell did not drive Mr. James himself because he did not realize how serious the injury was and because he had left all of his equipment on the boat. He asked Mr. Lewis to drive Mr. James.

[110] Mr. Mitchell identified his SUV on the DVD, Exhibit 20, leaving the parking lot at 2:20:59. On Exhibit 30 he marked where it was parked before leaving the lot.

Ryan Noel

[111] Ryan Noel testified that he followed Andy James off the boat and saw him walk into the parking lot. Leon Alexander, Anski Julien, Edmund Benjamin and Edwin Modeste were standing in a group facing Andy James as Mr. James walked into the parking lot. Also with the group was a man that Mr. Noel did not know. This man was about 5’4” or 5’5” tall and dark skinned.

[112] As Andy James walked towards the group, Mr. Alexander broke off from the group and grabbed Andy James with both hands around his waist. They fell to the ground behind some cars. They were on the ground for one to two minutes. When they were behind the cars Mr. Noel could not observe what was occurring. When Mr. Noel got to them, Andy James and Leon Alexander stood up. At this point, Mr. Noel heard Andy James say, “Why you do that to me?” He heard Mr. Alexander reply, “I tell you I’m gonna get you.” Mr. Noel asked Andy James if he was okay and Mr. James said, “Yes.” Mr. Noel did not see any injury at this point. However, just after this, Mr. James said to Mr. Noel “those boys hold me down” and “Budja [Leon Alexander] stabbed me."[^6] Mr. Noel saw blood on Mr. James’ stomach area. Mr. Noel then went to speak to security, to look for Alex Lewis and to tell him what had occurred.

[113] Mr. Noel next saw Alex Lewis and Eric Mitchell run past him into the parking lot. Alex Lewis and Eric Mitchell went to where Andy James was standing and Mr. Noel followed them. More people were around Mr. James and someone took a shirt to tie around Mr. James’ waist. They put Mr. James in Eric Mitchell’s car and Alex Lewis drove Mr. James away. Mr. Noel, in cross-examination testified that Alex Lewis got the car and brought it around to near the shed area. He had previously testified that another man also went in the car but believed that he may have been mistaken about that.

[114] In cross-examination, Mr. Noel was taken to his police statement where he had indicated that the other four men who had been around the original fight were also on the ground fighting with Mr. James. He did not adopt that statement. He said that did not occur.

[115] Mr. Noel testified that there was a girl near Andy James when he stood up.

[116] In terms of his description of Mr. Benjamin, Mr. Noel testified that he did not know what Mr. Benjamin was wearing and did not know whether he had facial hair at the time. Mr. Noel testified that Mr. Benjamin did have “dreads”. When asked to describe what Mr. Benjamin looked like on that night, Mr. Noel was unable to describe him, but simply said that he knew him and he looked like himself.

Dexter Regis

[117] Mr. Regis was 42 years old when he gave his evidence. He knew Andy James ‘to say hi’. He had known him for 7 years in 2009. They used to live in the same building and went to the same barber. He knew Brandon Ramdeen because Mr. Ramdeen hung out with friends of Mr. Regis. He knew Edwin Modeste from the Spice Isle Bar. He had known Mr. Modeste for about 8 years in 2009. He recognized Edmund Benjamin and Anski Julien as DJs with Greenz Connection and knew them ‘to say hi’. He had known them for about 6 years. He did not know Leon Alexander. He had seen him around over the 3 to 4 years before June 2009 but did not know his name and had never spoken to him.

[118] Mr. Regis went to the boat cruise with his good friend Collins George, Brandon Ramdeen and two others. Brandon Ramdeen drove his SUV to the cruise and Mr. Regis drove down with one of Collins George’s friends.

[119] Prior to the cruise Mr. Regis drank in the parking lot with several other men by Brandon Ramdeen’s SUV. Leon Alexander had a drink with the group.

[120] Dexter Regis testified about the events that occurred after the boat docked. Mr. Regis testified that he was among the first people off the boat. He saw a struggle. He saw Anski Julien holding the man he referred to as “the Dread” or “Vuja”. Mr. Regis testified that Anski Julien was holding the man around the waist with his hands. Vuja looked mad. He broke loose and ran through the parking lot, away from the boat and then back towards the boat.

[121] About two minutes after Mr. Regis made these observations, he saw Andy James walking. Mr. James was walking near the front of the boat where Mr. Regis was standing. Mr. James was bleeding. Mr. Regis took off his bandana and gave it to Mr. James to stop the blood. He was with Mr. James a couple of seconds. He had a conversation with him. Mr. Regis testified that Kenrick Williams was there at the time. Mr. James, at the time, was indicating who had inflicted the wounds upon him. Mr. James identified “Edwin” and pointed away from the boat, into the parking lot.

Michelle Phillip

[122] Michelle Phillip also made observations of the confrontation in the parking lot. Ms. Phillip testified that she saw Kenny “drop” Leon Alexander. She then saw Andy James and Anna George come off the boat. At the time, she said to Andy not to fight. Andy James said he just wanted to go to his car.[^7] After that, Ms. Phillip heard a noise and turned and saw what she described as a little “scruffle”. Mr. Alexander was ‘on’ Andy and it seemed to Ms. Phillip that everyone was trying to pull them apart. Ms. Phillip said that she saw Anna pulling Andy and she saw Mr. Alexander’s friends pulling him. She saw Anski Julien and Edwin Modeste pulling Mr. Alexander. She couldn’t see Andy James at that point because they were all “up on the windscreen”. Ms. Phillip was about 29 feet away when she made these observations.

[123] Ms. Phillip was asked what she meant when she said Mr. Alexander was “on” Andy James. She said they were all “tangled up” together. Ms. Philip did not see how the fight started or how it ended. She testified that she was not looking at the fight all of the time. She was looking for her husband.

[124] Sometime later, Ms. Phillip left the shed area where she had been standing. She walked into the parking lot and saw Anna George trying to fight with Leon Alexander. Ms. George had her hands on Mr. Alexander’s shirt and was slapping his face. Ms. Phillip testified that she separated Anna George from Mr. Alexander. Ms. Phillip talked to Ms. George and then Ms. George went towards the boat.

iv) The Brandon Ramdeen Fight

[125] Ten witnesses observed various aspects of the subsequent confrontation between Brandon Ramdeen and Edwin Modeste and others. I will now review that evidence.

Curland Andy Natoo

[126] Curland (Andy) Natoo came to the area of the fight with Brandon Ramdeen after the fight was over. He had remained on the boat after Brandon had left. When he came off the boat he saw Andy James who had been stabbed. He also spoke with Junior Williams and Rodney Charles who directed his attention to an area further into the parking lot and told him that his friend Brandon was up there and to ‘try to cool him down.’ I use this evidence not to infer anything about the conduct of Mr. Ramdeen but as evidence of the location and timing of the fight involving Mr. Ramdeen.

[127] Mr. Natoo began to move in the direction that Rodney Charles had pointed out. He observed people ‘scurrying’ and vehicles moving. When he was 60 to 70 feet away he saw Brandon Ramdeen. Mr. Ramdeen was moving in the direction of Mr. Natoo, but then fell on his face. A girl who was nearby flipped him over and began to do CPR.

Eric Mitchell

[128] Eric Mitchell testified that after Andy James left in his SUV with Alex Lewis and Anna George, Mr. Mitchell was making his way back to the boat and he heard the sound of someone else being beaten. He looked over and saw a man on the ground. Ryan Noel held Mr. Mitchell from behind and would not let Mr. Mitchell go over to the fight. He watched from about 50 metres away. He never got closer than 50 metres from the fight.

[129] The person on the ground was wearing white. Mr. Mitchell described the person the ground as ‘trying to fight his way up.’ The man was on his back, defending himself.

[130] In examination in chief, Mr. Mitchell testified that he saw three people fighting the man on the ground. The three were: Edmund Benjamin, Anski Julien and Edwin Modeste. Mr. Mitchell was facing Edmund Benjamin and saw him ‘kick and cuff’ downward. He could not say how many times Mr. Benjamin did this.

[131] He saw Anski Julien do the same thing. Mr. Julien’s back was facing Mr. Mitchell but he recognized him from his clothing. He had noticed earlier in the evening that Anski Julien was wearing a striped shirt.

[132] Edwin Modeste was facing Mr. Mitchell and Mr. Mitchell saw him kick and punch.

[133] Mr. Mitchell saw Mr. Benjamin near the man’s legs.

[134] Mr. Mitchell also saw the man he referred to as the ‘Kid’ near the fight but he did not see him at the front. The ‘Kid’ was Kimron Bengy. Mr. Bengy was standing nearby, behind Mr. Benjamin. Mr. Mitchell did not see Leon Alexander.

[135] Mr. Mitchell watched the fight for about 2 minutes and then went back on the boat. He did not see the police and ambulance arrive.

[136] Mr. Mitchell saw no weapon.

[137] In cross-examination Mr. Mitchell agreed that Mr. Benjamin was not punching the man on the ground because he was not that low. When asked to describe Mr. Benjamin’s clothing he testified that he thought that Mr. Benjamin was wearing a whitish T-shirt and not a button-up shirt.

[138] It is clear from the photographs of the cruise that Mr. Benjamin was wearing a grey button-up shirt.

Ryan Noel

[139] Ryan Noel testified that he was in the parking lot with Eric Mitchell after Andy James left with Alex Lewis. He heard loud talking and an argument. He heard people screaming. Mr. Noel could not see what was occurring because he was holding Eric Mitchell from behind to prevent him from going over to the argument. He released Eric Mitchell at some point and Eric Mitchell did not go over. Mr. Noel testified that he was about 48 feet away from the area of the argument. He saw the police and ambulance arrive and Eric Mitchell was with him until that point. They talked about what had happened and they heard that someone else had been stabbed. In cross-examination Mr. Noel insisted that it was impossible that Mr. Mitchell had gone back on the boat before the police and ambulance arrived.

Michelle Phillip

[140] Michelle Phillip watched the fight involving Brandon Ramdeen from about 40-50 feet away. She was looking for her husband so that they could leave. She saw Mr. Ramdeen approach a group and the men in the group all ‘jumped him.’ In the group were Edwin Modeste, Anski Julien, Leon Alexander and a short dark guy who was only a little taller than 5 feet and had a short tapered haircut. He was wearing a big T-shirt with a coloured pattern.

[141] Ms. Phillip particularly noticed the small dark man because he was ‘stomping so hard’ when Mr. Ramdeen was on the ground.

[142] Ms. Phillip said that she saw the men in the group kicking and punching and stomping. She did not know exactly what each individual was doing. She saw Dexter Regis approach the fight with a baseball bat and after that the fight stopped. Mr. Ramdeen got up halfway and then fell on his face. She could see lots of blood on his clothes.

[143] The group of men got in a car and left. Ms. Phillip said that she believed that Anski Julien, Edwin Modeste and Leon Alexander left in the same car. Ms. Phillip testified that she knew Anski Julien and she knew Andre Julien, Anski’s cousin. She knew Andre Julien to wear long braids.

[144] Ms. Phillip left the parking lot with her husband. The police first contacted Ms. Phillip about five months after the incident and she gave a statement at that time.

[145] In cross-examination Ms. Phillip agreed that she could have been mistaken about seeing Leon Alexander in the fight. She agreed that she may have assumed that he was part of the fight because of his earlier aggressive behavior.

[146] She agreed that she was distracted and upset when she was watching the fight.

Kenrick Williams

[147] As noted above, Kenrick Williams testified that he remained close by or in the same area as Leon Alexander after the altercation involving Andy James. Collins George came by the area and told Mr. Williams that Andy James had been stabbed. Sometime after Collins came by and told Mr. Williams that Andy had been stabbed, Mr. Williams saw Dexter Regis in the area with a baseball bat.

[148] Mr. Williams testified that he saw Dexter Regis push Leon Alexander and heard him say “who stabbed my brethren?” Mr. Williams said that Dexter Regis and Leon Alexander were arms length from each other. After he pushed Mr. Alexander, Mr. Regis swung the bat at Mr. Alexander. Mr. Williams saw someone grab the bat from Mr. Regis. He did not recall who grabbed the bat. He believed that the person was successful in grabbing it because he did not see it after that. When asked where he was when he observed the push Mr. Williams testified that he was “right there.”

[149] Mr. Williams then saw Brandon Ramdeen walking towards the area. Mr. Ramdeen was by himself. Mr. Ramdeen got to a certain point and was motioning. He was attacked right away. Mr. Williams testified that he was some distance away from the attack. He was ‘not really that close’ but could still see. He testified that he stepped back from the fight and did not get involved.

[150] Mr. Williams could not see who attacked Mr. Ramdeen. He was sure that there was a fight but could not say how many were in the fight. He saw Brandon Ramdeen drop to the ground and saw him getting kicked on the ground. Mr. Williams testified that he thought the assailants were ‘belting punches’ and kicking but he could not say how many blows were struck.

[151] A little bit later, Mr. Williams saw Brandon Ramdeen try to get up and fall down again. At that point, everybody backed up. When the group backed up, Mr. Williams saw Edwin Modeste, Leon Alexander, Edmund Benjamin, Anski Julien and others.

[152] Mr. Williams went home at this point.

[153] Mr. Williams agreed that he originally told the police in his June 24, 2009 statement that there were so many guys it was hard to tell who was there.

[154] Mr. Williams agreed that could not say who was an aggressor and who was a peacekeeper.

[155] Mr. Williams agreed that the fight happened very quickly and was over in less than a minute. He agreed that the parking lot was noisy.

[156] He did not see Collins George enter the fight and pull anyone off. He did not see anyone standing over Brandon Ramdeen and making stabbing motions.

Dixon Henry

[157] Dixon Henry was 39 years old when he testified. He had been friends with Andy James and with Brandon Ramdeen for over 5 years in 2009. They used to ‘hang out’ together. He knew who Edwin Modeste was because he knew Edwin to run a bar on Eglinton. Mr. Henry was shown a photograph of Anski Julien and he said that he thought the person in the photograph was “Hanski” but he was not sure of the name. He said that he knew this person as a DJ and used to see him at parties. He knew him 4, 5 or 6 years. Mr. Henry identified Edmund Benjamin and Leon Alexander in court and testified that he knew them as Shaggy and Buja. He knew that Shaggy and “Hanski” were Greenz Connection DJ’s and Buja was part of the Greenz Connection ‘crew’. Mr. Henry testified that he was not close friends with Shaggy or Buja but would say ‘hi’ to them and had no issues with them.

[158] On June 20, 2009 Mr. Henry drove to the boat cruise with his cousin Mike Ramdeen. They arrived at 8:00 or 8:30 p.m. They stayed in the parking lot playing music and socializing until the cruise was ready to leave. He testified in examination in chief first that he had two drinks in the parking lot and then that he had more than one shot of rum in the parking lot but could not remember how much he had. He was drinking with Andy James, Brandon Ramdeen and others. On the cruise he said in examination in chief that he had 2 Coronas. He testified that he was not intoxicated. He maintained that this was all that he drank although cross-examined on inconsistent statements and on the DVD footage of the cruise, which I will outline further when I deal with my findings as to credibility and reliability.

[159] Mr. Henry saw no incidents on the boat during the cruise. After the boat docked Mr. Henry heard that there was a fight outside. He ran outside. To his right he saw Andy James holding his stomach. Mr. Henry and his brother helped to hold Mr. James and to get him into a vehicle to take him to the hospital. Mr. Henry said that Eric Mitchell and Alex Lewis were at the vehicle. He was not sure if there were others there as well. Once Andy James was in the vehicle there was a car blocking the way. Mr. Henry testified that he assisted in clearing a path for the vehicle taking Andy James to the hospital.

[160] After clearing a path for the car taking Mr. James, Mr. Henry heard people yelling, “they’re killing someone over there.” He went over to an area where he saw a fight. He saw Edmund Benjamin “pretty much on top” of a person on the ground. There were others kicking and cuffing the person on the ground. There were some people trying to help. The blows to the person were directed at his upper body and head. There were three or four or more besides Mr. Benjamin. Mr. Henry could not identify the others who were striking the person.

[161] Mr. Henry testified that his attention was focused on Mr. Benjamin. Mr. Benjamin was making a stabbing motion over the person on the ground. He could not tell if the motion was directed at the front or back of the person on the ground. Mr. Henry testified in examination-in-chief that when he got to the area people were pulling Mr. Benjamin off and then Mr. Benjamin jumped back. When he jumped back Mr. Henry saw something in Mr. Benjamin’s hand. Mr. Benjamin said “I told you guys not to fuck with me.” Mr. Henry testified that Mr. Benjamin switched the object from one hand to the other.

[162] In cross-examination Mr. Henry testified that no one pulled Mr. Benjamin off of the person on the ground. He testified that he saw people pulling others off.

[163] When the people involved in the fight separated, Mr. Henry saw Anski Julien, Leon Alexander, Edwin Modeste, a man he knew as Dallo and others. Mr. Henry had known Dallo for 15 years.

[164] Mr. Henry said that he and 2 to 3 other people helped to pick Mr. Ramdeen up off the ground. Mr. Ramdeen walked a couple of steps and fell on his face. At this point Anski Julien held his arms over his face and someone said ‘let’s get out of here.’

[165] Mr Henry saw Leon Alexander leave with Dallo and saw Anski Julien, Edmund Benjamin and Edwin Modeste leave in another vehicle.

[166] Mr. Henry described the person he saw standing over the man on the ground making stabbing motions as being his height or a little taller. Mr. Henry is 5’3” tall. Mr. Benjamin is about 5 or 6 inches taller than Mr. Henry.

[167] Mr. Henry did not see anyone approach Mr. Ramdeen after he had fallen on his face. He did not observe anyone to stamp his foot and say anything.

[168] Mr. Henry helped to turn Mr. Ramdeen over and someone called 911. Mr. Henry spoke to the 911 operator until the police arrived.

[169] Mr. Henry left in a van driven by a Soul Vibe DJ.

Holford Lewis

[170] Holford Lewis was 44 years old when he testified. In 2009 he knew Andy James because he had met him in 2008 or 2009 in Grenada. He saw him at the cricket field and bar in Toronto after meeting him. He knew Brandon Ramdeen through Brandon Ramdeen’s roommate Andy Natoo. He knew Anski Julien from parties and he knew both Edwin Modeste and Leon Alexander from seeing them at the Spice Isle Bar. Mr. Lewis did not know Edmund Benjamin. Collins George was a very good friend of Holford Lewis. Mr. Lewis knew Dexter Regis through Collins George and another friend Mickey.

[171] Holford Lewis attended the Island Link-up boat cruise on June 20, 2009 with his brother Simon Gilbert and with Rodney Charles. They drove to the cruise in Mr. Lewis’s white Sienna minivan. Mr. Lewis parked facing the boat. Brandon Ramdeen was parked in front of him and to his right. The back of Mr. Ramdeen’s Jeep was open and people were listening to music and drinking. Mr. Lewis had one or two drinks with Brandon Ramdeen and the others. During the cruise Mr. Lewis had 1 or 2 more drinks.

[172] At the end of the cruise Mr. Lewis was among the first to leave the boat. He was among the first 5 people off the boat. He sat in his minivan in the parking lot after the cruise. His friend Mickey’s Acura was parked behind his van.

[173] He saw Edwin Modeste and Leon Alexander pulling each other through the parking lot. Mr. Lewis knew Edwin Modeste and Leon Alexander from the bar but he did not know Leon Alexander well. He referred to Mr. Alexander later in his police statement as ‘the dread’ because of his dreadlocks. In his testimony at trial he did not know Mr. Alexander’s real name or his nickname, but believed his nickname to be ‘Vuja.’

[174] When Mr. Lewis saw Mr. Modeste and the man he identified as Leon Alexander he could not tell who was pulling whom. They ended up behind his van. He watched them in his rearview mirror. They appeared to be having a conversation.

[175] Brandon Ramdeen passed his van. He was by himself. Mr. Lewis heard him through the open window say, “Just like that, the man stab my brethren.” Mr. Lewis got out of his van to ask who was stabbed.

[176] He saw Mr. Ramdeen approach Mr. Modeste and Mr. Alexander. Collins George and Dexter Regis arrived almost immediately after Mr. Ramdeen. Mr. Ramdeen said to Mr. Modeste and Mr. Alexander, “just like that you guys stab my brethren.” He said this 2 to 3 times. At that point Mr. Modeste and Mr. Alexander ‘rushed’ Mr. Ramdeen. They fell onto the hood of a car and there was a scuffle. Mr. Lewis did not see any kicking or punching.

[177] During the scuffle on top of the car, Mr. Ramdeen was on the hood of the car, Mr. Modeste was on top of Mr. Ramdeen and Mr. Alexander was on top of Mr. Modeste. Within seconds Mr. Lewis saw red on the clothes of the people in the fight. Mr. Modeste and Mr. Alexander let Mr. Ramdeen go and ran in opposite directions. Mr. Lewis testified that Collins George and Dexter Regis were present when the fight was occurring, but they did not participate. One of them had a bat but Mr. Lewis did not see the bat used.

[178] Mr. Ramdeen got off the car, took 3 to 4 steps in the direction of Mr. Lewis and then fell on his face. Mr. Lewis testified that he was close enough that he was able to try to grab Mr. Ramdeen as he fell but Mr. Ramdeen was too heavy and he could not hold him.

[179] Mr Ramdeen fell on his face to the ground. After Mr. Ramdeen fell to the ground, Holford Lewis began screaming, “They killed the guy, oh my God, they killed the guy.”

[180] After Mr. Ramdeen fell to the ground, a girl was there. She told Mr. Lewis to put pressure on the wound and he did so. While he and the girl were trying to help Mr. Ramdeen, a man came by and stomped his foot near Mr. Ramdeen and said “you little pussyhole - look what you caused.” The man was short and dark with very low cut hair.

[181] Before the police arrived, Mr. Lewis left the parking lot in his van with his brother and Dexter Regis. They drove out of the parking lot and waited on the street for Rodney Charles.

[182] In cross-examination Mr. Lewis was taken to a previous statement in which he said that at first Mr. Modeste and Mr. Alexander were involved and then a third guy joined in. He saw the third guy ‘dip to his waist.’ Mr. Lewis adopted this statement. He also adopted his previous characterization of the end of the fight as being that people were pulling and then they realized that someone is bleeding and they let go. Mr. Lewis testified that only the short guy was kicking near Mr. Ramdeen after Mr. Ramdeen was on the ground.

[183] Mr. Lewis said that after the fight began he watched the fight from the rear of his van on the driver’s side. Dexter Regis and Collins George were also at the rear of his van but on the passenger side about 6 feet away from him.

[184] Mr. Lewis testified that the struggle that he observed went very quickly. It took seconds, possibly 20 to 25 seconds.

[185] Mr. Lewis testified that when Brandon was at the car with the 3 men they were not kicking him.

[186] Mr. Lewis spoke to the police the next day. He did not tell the police that Dexter Regis and Collins George were near the fight. He said that he did not tell the police because they did not ask.

Dexter Regis

[187] Dexter Regis testified that he saw Andy James after he was stabbed. Mr. Regis had a conversation with Mr. James and gave Mr. James a bandanna to stop the bleeding. Mr. Regis testified that Kenrick Williams and others were present when he was talking to Mr. James. Mr. James pointed into the parking lot to point out the person who had stabbed him. He named Edwin as his assailant. Mr. Regis went into the parking lot to the person who had been indicated by Andy James. He could see that a person was there but could not see who it was until he got closer. He approached the person because he was upset. Mr. Regis had a bat in his hand. He testified that he got the bat from the ground or someone handed it to him.

[188] When he went in to the parking lot to confront the person, he went by himself. He did not know if anyone was behind him. Mr. Regis testified that he did not know if Collins George was walking behind him as he went through the parking lot. He was taken to his preliminary inquiry testimony where he said that Mr. George did walk behind him.

[189] When he reached the person, he realized that it was Edwin whom he knew from the Spice Isle Bar. He asked Edwin why he stabbed the guy and Edwin said “Dexter, I didn’t stab him.” Mr. Regis walked away because Mr. Modeste had said that he did not stab the man. Mr. Regis testified that no one else was in the area for the conversation.

[190] When he walked away from Mr. Modeste, Mr. Regis saw Brandon Ramdeen going through the parking lot. Mr. Ramdeen was walking towards three people: Edwin Modeste, Anski Julien and Edmund Benjamin. Mr. Regis saw Mr. Ramdeen approach the three men. He could not hear what was said but he saw that a fight started. People were punching each other. After the fight began between Mr. Ramdeen and the three men, two other men joined in: the ‘Dread” who he identified as Leon Alexander and a short dark guy.

[191] Mr. Regis was about 20 feet away from the fight. He could see the five men fighting Brandon and he could see Brandon trying to defend himself. At one point Mr. Ramdeen dropped to the ground. The other men were using their feet. Mr. Regis could not say what each individual was doing. At one point in the fight the short dark guy left the fight and came to Mr. Regis and tried to take the baseball bat from Mr. Regis. He was not successful in getting the bat and went back in to the fight.

[192] Brandon Ramdeen fell to the ground on his face and the short dark guy walked away then walked back and stood over Mr. Ramdeen. The man folded his arms and said “What now?” Mr. Regis saw a knife in the right hand of the man. It was 6 to 7 inches long. The man with the knife had an accent and the accent sounded like a St. Vincent’s or Jamaican accent.

[193] During the fight, Holford Lewis was standing beside Mr. Regis. Mr. Regis never saw Mr. Lewis touch Mr. Ramdeen.

[194] Mr. Regis did not know where Collins George was during the fight. Mr. George was not close to Mr. Regis. Mr. Regis was taken to his preliminary inquiry testimony where he said that Mr. George was closer to the fight. Mr. Regis did not see anyone break up the fight. He did not see Collins George break up the fight.

[195] Mr. Regis left the parking lot in Holford Lewis’s van. Mr. Regis took the bat with him. He later left the bat in a parking lot around Jane Street and Trethewey. He left the bat because it was not his bat and he did not want to take it home.

[196] As I will discuss further below in my analysis of the credibility and reliability of the witnesses, Mr. Regis initially lied to the police about the bat.

Collins George

[197] Mr. George was 36 years old when he gave evidence. He knew Andy James through friends. He was good friends with Brandon Ramdeen. He knew of Greenz Connection. He knew there were two DJ’s known as Anski and Shaggy. He knew that their office was at Eglinton and Dufferin. He had known Shaggy for 3 years in 2009 but they did not have a relationship, he just knew him. Anski and he talked. Mr. George knew Leon Alexander and had known him for a couple of years. Mr. George used to go to the Spice Isle Bar about once a week and he saw Edwin Modeste there but did not know his name in 2009. Mr. George knew that Leon Alexander and Edwin Modeste used to hang out with Greenz Connection.

[198] Prior to the cruise Mr. George was at Andy Natoo’s house with Andy Natoo, Brandon Ramdeen, Winston, Ron, Junior Williams and Kevin. He could not remember if Dexter Regis was there or if they picked him up on the way to the cruise. They all went to the cruise in two cars. They got there early and Mr. George and Junior Williams went to the liquor store and purchased two bottles of liquor. They went back to the parking lot and drank the bottles with the others. Other people also came by for drinks. Leon Alexander had a drink with them.

[199] After the boat docked, Mr. George was among the last to leave the boat. He saw Andy James in the parking lot. Andy James had been stabbed. Mr. James told him that Edwin stabbed him. Mr. George did not know who Mr. James was talking about. After the conversation with Mr. James, Mr. George went looking for Edwin with Dexter Regis, Ron, Junior, Kevin and possibly Winston. Brandon Ramdeen was also with the group. On Mr. George’s evidence there were a lot of men in the group.

[200] Mr. George saw no weapons. He saw no baseball bat.

[201] They approached Edwin and Mr. George recognized him from the bar. Edwin was standing with Anski Julien, Edmund Benjamin, Leon Alexander and others that Mr. George did not recognize.

[202] Mr. George and all of the others were standing close to Mr. Regis. Mr. George heard Dexter Regis ask Edwin “Why you stab the man for?” Edwin said, “What man?” and Dexter said, “Andy said you stabbed him.” Edwin then said, “I don’t know what you’re talking about.”

[203] After the exchange between Dexter Regis and Edwin Modeste there was no other conversation and there was no physical contact.

[204] There was a short man who Mr. George did not know standing in the area near Edwin and the others. The short man went around Mr. George. Mr. George could not see what the short man did, but the man came around in an aggressive way. Brandon Ramdeen appeared to react to something that the short man did and Mr. Ramdeen moved towards Edwin’s group.

[205] In the fight that followed were the short guy, Edwin Modeste, Edmund Benjamin, Anski Julien and Leon Alexander. No one from Mr. George’s group was involved except for Mr. Ramdeen. Punches were thrown and people were scrambling.

[206] Brandon Ramdeen was fighting back against the others. At the start of the fight Brandon Ramdeen was on his back on the hood of a car. He fell to the ground and was kicked. The kicking lasted only for seconds. Mr. George went in and pushed Edmund Benjamin and then Anski Julien away from the fight. They walked away and did not try to get back into the fight. He said he thought they went to a white Honda. Mr. George was watching Mr. Julien and Mr. Benjamin walk away and was not watching the end of the fight. He did not know if the kicking continued. When he turned back to the fight it was over. He could not recall if Mr. Modeste, Mr. Alexander and the short man were still there.

[207] Mr. George saw Mr. Ramdeen try to get up, walk a few steps and fall on his face. He was lying on his stomach and did not get up. Someone rolled him over and there was blood on his chest.

[208] Mr. George in cross-examination testified that he left the boat at the same time as Curland (Andy) Natoo. When he spoke with Andy James several people were present.

[209] Mr. George testified that he did not see Kenrick Williams after the boat docked. He did not talk to Kenrick Williams. He did not tell Kenrick Williams that Andy had been stabbed. He did not see Kenrick Williams near Leon Alexander.

[210] Mr. George agreed that generally when he says ‘probably’ and ‘I think’ it means that he is not sure. He was not sure when he said that he ‘thought’ that Anski and Shaggy got into a car and he ‘thought’ that it was a white Honda. He was taken to his police statement of June 21st 2009 where he was asked who was kicking Mr. Ramdeen and he said “probably Shaggy – they was all kicking him.”

[211] Mr. George testified that he knew a man named Holford but did not know if Holford was standing near him during the fight.

[212] Mr. George remained at the parking lot until the police and ambulance arrived. He went with the police and gave a statement to them a few hours later.

Lois Harewood

[213] Lois Harewood did not see the Brandon Ramdeen fight. She went back on the boat after Andy James had been stabbed. As she was going back onto the boat she saw Eric Mitchell rushing off. She remained there for less than a minute and then went back out to the spot she had been previously. Andy James was no longer there. She remained in the area outside the shed for 3 to 5 minutes and then heard that someone else had been stabbed. She immediately left in her car because she did not want to be trapped in the parking lot. On her way out of the parking lot in her car she saw Anski Julien and Edmund Benjamin driving out as well. She saw Brandon Ramdeen on the ground.

v) Physical Evidence

[214] I do not intend to summarize all of the physical evidence in this case. I will review some of the physical evidence and relate it to the testimony of the witnesses concerning the location of the stabbings and the persons present.

[215] The evidence of blood in the parking lot assists in determining the location of the stabbings and the path taken by Mr. James after he was stabbed.

[216] Blood with Andy James’s DNA was located to the northeast of the shed. Blood was found very close to a car in that area. Both Lois Harewood and Ryan Noel described the confrontation between Leon Alexander and Andy James as occurring near a car or cars. More blood was found southwest of the car.

[217] This is consistent with the location described by Lois Harewood where Andy James would have been standing when he stepped back after the confrontation.

[218] Witnesses described Mr. James speaking to people after he had been stabbed. The evidence that Andy James spoke to people and named the individuals he believed to have stabbed him was admitted as part of the narrative. Blood was found in an area that is consistent with the evidence of Alex Lewis, Eric Mitchell, Ryan Noel and Dexter Regis who described Mr. James walking in the area to the northeast of the shed speaking to people. After these conversations, he moved further north and east to the vehicle of Eric Mitchell. The blood found in the parking lot confirms this general path as does the bloodstained bandanna that was found north and east of the shed.

[219] Foreign DNA was found under the fingernail of the left hand of Andy James. Leon Alexander could not be excluded as the source of the DNA. The presence of the DNA of Leon Alexander is consistent with physical contact between Leon Alexander and Andy James sometime on the night of June 20th or morning of June 21, 2009. There are only two occasions when such contact is said to have occurred. One possibility is when Andy James was seen to come into physical contact with Leon Alexander when he stopped him on the boat and spoke to him. The other possible occasion is during the confrontation in the parking lot when four witnesses saw some degree of physical contact between Andy James and Leon Alexander.

[220] The evidence of Melanie Richard, a DNA expert, was that it was not impossible that the DNA of Leon Alexander could have been deposited under the nail of Andy James when Andy James touched Leon Alexander on the boat. However, Ms. Richard described the probability of that occurring as low. She testified that DNA under fingernails is generally the result of intimate physical contact and not mere touching.

[221] An Acura registered to Leslie Mickey Wells was located just south of a concentration of bloodstains on the pavement. Mr. Ramdeen’s DNA was identified in this bloodstained area.

[222] Branching out to the west of the concentration of bloodstains are further bloodstains. DNA testing of the swabs from that area identified a DNA profile that did not exclude Kimron Bengy.

[223] Within the general area of concentrated staining were located flyers advertising an event featuring Greenz Connection and a unique handmade pendant which Edmund Benjamin was seen to be wearing during the boat cruise. Edmund Benjamin had been handing out flyers earlier in the evening according to Anna George. The flyers in the parking lot were bloodstained. This supports the inference that they were on the ground before Brandon Ramdeen fell to the ground. The necklace was in the same general area as the flyers.

[224] Cameras from the parking lot near the boat and from a neighbouring business recorded the events following the cruise to some degree. The quality of the videos is poor and individuals cannot be identified from the footage. The footage is useful in establishing the general timeline of events following the cruise.

[225] It is agreed that the boat docked at approximately 2:05 a.m. the morning of June 21, 2009. Some persons had already disembarked by the time that Kenrick Williams brought Leon Alexander off the boat. Michelle Phillip testified that she was standing under the shed area when Mr. Williams brought Mr. Alexander off the boat. Mr. Williams testified that Edwin was already at the end of the shed when he deposited Mr. Alexander.

[226] Mr. Alexander was seen to have tried to break loose from his friends and was seen to have run into the parking lot before Mr. James left the boat.

[227] Mr. James, Ms. George, Alex Lewis and Ryan Noel left the boat a few minutes after the confrontation on the boat.

[228] At 2:19:32 the first 911 call was placed.

[229] I infer from this evidence that the initial confrontation on the boat occurred just prior to 2:05 am and the confrontation in the parking lot between Mr. James and Mr. Alexander occurred within 14 minutes of the boat docking.

[230] At approximately 2:20:17 Eric Mitchell’s SUV is visible on the video surveillance of the parking lot driving out of the lot. By this time, Andy James had identified ‘Edwin’ as his assailant and several men had moved into the parking lot to look for Edwin. A struggle of some sort is visible on the video surveillance in the general area of the Brandon Ramdeen stabbing as the vehicle carrying Andy James is leaving the parking lot.

[231] By 2:20:56, the surveillance video shows people in the area of the Brandon Ramdeen stabbing looking towards the ground.

[232] This is consistent with the testimony of Eric Mitchell and Ryan Noel that as the car with Andy James was leaving, they heard the noise of a fight to the north of their location.

[233] All of the witnesses to the Brandon Ramdeen fight testified that the fight lasted only a brief time and that events moved very quickly.

[234] I infer from this evidence that the stabbing of Brandon Ramdeen was occurring between about 2:20 and 2:21 a.m. The police arrived on scene at 2:24 a.m.

vi) Evidence of the Pathologists

[235] Dr. Toby Rose was qualified as an expert in the area of forensic pathology. She performed the autopsy on Andy James.

[236] Dr. Rose testified that the death of Andy James was caused by two stab wounds. One wound was to the right back or flank area. It was a diagonal wound, 2.1 cm in length that was surrounded by a bruise. The other serious stab wound was to the right upper abdomen. It was a vertical wound that was 2 cm in length. Both wounds went into the liver.

[237] Other sharp force injuries observed by Dr. Rose were: a superficial incised wound to the left upper back, a gaping atypical superficial incised wound to the left upper arm, a superficial incised wound to the right lower abdomen and to the right upper back.

[238] She also observed a bruise on his left flank and an abrasion and bruise on his right upper arm.

[239] Dr. Rose’s opinion was that the stab wounds that caused death were caused by a knife with a single sharp edge and a blunt edge.

[240] Dr. Tanguay was also qualified to give expert evidence as a forensic pathologist. He performed the autopsy on Brandon Ramdeen.

[241] The cause of Brandon Ramdeen’s death was blood loss from two stab wounds to the heart. One wound was on the left side of the chest and 2.5 cm in length. The path of the wound was from front to back, slightly upward and left to right. The other wound was to the lower left chest and was 2.5 cm in length. The left corner of the wound was blunt but the right was sharp. The wound path was front to back, upward and left to right.

[242] In addition to the two wounds that caused death Dr. Tanguay observed the following injuries: an abrasion on his left cheek under his eye, a small abrasion adjacent to his left eyebrow, a small abrasion adjacent to his right eyebrow, a laceration to his chin and lower lip, a laceration below the lip, a split through the lip into the mouth, a broken tooth, a fractured right jaw and a split in the lining of his mouth associated with the fracture of the jaw. He observed three bruises to the scalp: behind the left ear on the back left of the head and on the left upper part of the head. There was an abrasion to the left elbow, an abrasion to the back of the left hand near the baby finger, four abrasions on the back of the left hand near the knuckles and an abrasion on the back of the right hand near the knuckles.

[243] Dr. Tanguay testified that the injuries to Mr. Ramdeen’s face could have been caused by a fall, face first to the ground. However, this wouldn’t explain the bruises to the back of his head. Dr. Tanguay testified that the injuries to Mr. Ramdeen’s face and to the back of his head are difficult to explain from one fall. The injuries could have been caused from kicking or punching.

[244] The bruises could have been caused by Mr. Ramdeen being rolled onto his back but the number and location of the bruises suggest that this explanation does not account for all of the bruising.

[245] Dr. Tanguay, in cross-examination, agreed that the injuries to Mr. Ramdeen’s hands were consistent with Mr. Ramdeen delivering blows.

vii) Defence Evidence

Leon Alexander

[246] Leon Alexander testified at his trial. He testified that he did not stab Andy James. He did not assist anyone or encourage anyone to stab Andy James. He did not possess a knife or any other weapon and he was not aware of anyone possessing a knife. He testified that he was not involved in the Brandon Ramdeen fight at all and he did not assist or encourage anyone to participate in the Brandon Ramdeen fight.

[247] Mr. Alexander was 32 years old at the time of trial. He is originally from Grenada and came to Canada in 1999. Mr. Alexander knew Anna George. The two went to high school together. They were friends in high school and they socialized outside of school. Mr. Alexander also knew Ms. George and was friendly with her in Canada. Ms. George was married to Anski Julien and Mr. Alexander was invited to the wedding. He was a friend of Anski Julien’s at the time. Mr. Alexander was aware of the divorce of Anski Julien and Anna George.

[248] Mr. Alexander testified that he had a good relationship with Anski Julien; that they were friends ‑ they were “tight”. He also testified that he had known Edmund Benjamin since they were children in Grenada where they were also close friends.

[249] Mr. Alexander testified that he was friends with Edwin Modeste, although he was closer with Edmund Benjamin and Anski Julien. Mr. Alexander agreed that he had dreadlocks in June of 2009. He had had them for a long time. His height is 6’1” and his weight is 175 pounds.

[250] With respect to his relationship with Kimron Bengy, Mr. Alexander testified that he didn’t have a problem with Mr. Bengy, but they were not really close.

[251] Mr. Alexander was aware of the assault charge against Anski Julien in relation to Anna George and he was aware that Andy James was a witness. Between the time of the assault charge charge against Anski Julien and the boat cruise, Mr. Alexander had only spoken to Anna George once and this was when she spoke about serving divorce papers on Anski Julien. Mr. Alexander did not agree that he was upset with Anna George. He did agree that he made no effort to see Anna George or have a conversation with her until the boat cruise.

[252] Mr. Alexander testified about the events of June 20 to 21, 2009. He attended the cruise with Anski Julien, Edmund Benjamin and Kimron Bengy. Mr. Alexander took his girlfriend’s car and drove it to Anski Julien’s. Anski Julien then drove the car to pick up Edmund Benjamin and Kimron Bengy. The four men drove to the cruise. Upon arrival, Mr. Alexander saw a guy he knew as “Mickey” with a group of other men, drinking. He went over to them and had a drink with the group. Brandon Ramdeen was part of the group although Mr. Alexander was not aware of his name at the time.

[253] Before the boat left, Mr. Alexander went around the parking lot talking and socializing.

[254] Mr. Alexander testified that during the cruise people were dancing, drinking and eating. He consumed alcohol on the cruise. He testified that he had about two Guinness and some vodka with cranberry juice.

[255] Mr. Alexander testified under cross-examination that during the cruise, he hung out mostly by himself, but also with Anski Julien and Edmund Benjamin by the DJ booth. He agreed that it was possible that when he was with them by the DJ booth they had a bottle of Grey Goose vodka and it’s possible that he had more than one drink from that bottle. However, he believed that he poured himself one drink. He couldn’t recall if others poured him more.

[256] During the cruise Mr. Alexander spoke to Anna George. He testified that he was walking around talking and socializing on the first level of the boat. Anna George was sitting with Andy James standing nearby. Mr. Alexander approached her, put his arm around her shoulder and told her not to mind what had happened between her and Anski, that they were still friends. Mr. Alexander testified that what he meant was, that he didn’t have a problem with her in spite of the fact that she had taken Mr. Julien to court. He wanted to communicate that it wasn’t his business and he hoped that he could still be friends with her. Mr. Alexander testified that Ms. George looked at him and nodded and Mr. Alexander left. Neither Mr. James nor Ms. George said anything to him. Mr. Alexander testified that that was the only physical contact between him and Anna George.

[257] Mr. Alexander testified that at the end of the cruise he was leaving the boat when he realized that he had forgotten his jacket. He turned and went back onto the boat. He was rushing to get his jacket when he felt someone grab his right arm. He was wearing a white t-shirt and jeans. The t-shirt ended just above his elbows. Mr. Alexander testified that Andy James had grabbed him on the arm. He explained that his DNA could be under Mr. James’ fingernails because of the manner in which he was grabbed. He testified that his sleeve rolled up when Mr. James grabbed him.

[258] Mr. Alexander turned and faced Mr. James who said to him, “When you see my girlfriend, don’t bounce her.” He replied to Mr. James, “What the fuck is your problem? I’m not Anski. I’m not the one you have a problem with.” Mr. James said again, “When you see my girlfriend, don’t bounce her.” Mr. Alexander testified that he then said to Mr. James, “I feel like boxing you for grabbing me”, at which point Mr. James said, “Do it.”

[259] Mr. Alexander testified that after Mr. James said, “Do it” he attempted to “box” Mr. James. He attempted to hit him with an open palm to the face. Before he could do that, some men came between Mr. James and Mr. Alexander. One of the men was Alex Lewis, who said, “No fighting on the boat.” Kenrick Williams, also known as “Bob”, grabbed Mr. Alexander and walked him off the boat. Mr. Alexander testified that Mr. Williams grabbed him in a bear hug.

[260] Mr. Alexander testified that he was angry at Mr. James for grabbing him and for what he said about touching his girlfriend. Mr. Alexander testified that he was attempting to hit Mr. James when he was intercepted by the other men. He raised his hand to hit Mr. James, but did not actually make contact with Mr. James.

[261] Mr. Alexander testified that he did not, at any point in time, make contact with Anna George while he was swinging his hands to hit Mr. James.

[262] Mr. Alexander testified that when Mr. Williams walked him off the boat, Mr. Williams dropped him in front of Anski Julien. He dropped him just outside the shed area. Mr. Alexander could not remember exactly what Mr. Williams said, but he recalled Mr. Julien saying, “What’s going on?” Mr. Alexander recalled that Anski Julien kept asking what was going on and holding him. He was trying to break free from Mr. Julien and asking Mr. Julien to let him go. Mr. Alexander testified that he was still upset. Mr. Julien did, eventually, let him go.

[263] Mr. Alexander testified that he then walked across the parking lot to the right side. There were some parked boats a little in front of the shed. Mr. Alexander testified that he stayed in this area, out of the way of the flow of people coming from the boat, because he wanted to cool off. It was at this point that he saw Andy James and Anna George leaving the boat. Kenrick Williams was also walking across the parking lot. Mr. Alexander recalled that Michelle Phillip was around that area as well. Mr. Alexander, upon seeing Andy James, rushed up to him with the intention of attempting to “box” him again. Before he could do so, he was intercepted by Kenrick Williams. He testified that he got to within four feet of Andy James before being intercepted by Mr. Williams. He agreed that he might have swung at Andy. When he got near Andy James, Anna George, Kenrick Williams and Michelle Philip were also nearby. Mr. Alexander testified that he was not with anyone at the time.

[264] Mr. Alexander testified that Kenrick Williams pulled him away and Mr. Alexander testified that he did not look back towards Andy James after being pulled away. Mr. Williams was saying things like, “Forget about it. Don’t worry about it. Calm down.” While Mr. Alexander was with Mr. Williams, Edwin Modeste came by and tried to pull Mr. Alexander away. Mr. Alexander testified that he said to Edwin Modeste to forget about it, that he and Bob (KenrickWilliams) were “cool”. Sometime after that, Mr. Williams left the area.

[265] Mr. Alexander testified that he was walking across the parking lot after Mr. Williams left. He ran into Edwin Modeste, who was leaning against a car and rolling a marijuana cigarette. He did not talk to Mr. Modeste, but instead continued back to the area where he had been standing before, over by the boats. While he was in the area by the boats, Anna George came by and grabbed him by the shirt and began hitting him with her fists against his chest. He could not recall what she said, but recalled that she was angry. Mr. Alexander testified that he did not say anything to her. Mr. Alexander testified that the confrontation with Ms. George ended when she walked away from him. She was walking back towards the boat.

[266] Mr. Alexander testified that at that point, he looked over into the parking lot and noticed Mr. Modeste standing and facing Dexter Regis who had a baseball bat in his hand. Mr. Regis was standing in front of Mr. Modeste. Just after that, Mr. Alexander saw three to four men come up behind Mr. Regis. He did not know the others. Mr. Alexander, at the time, was about 31 feet away from the group. The lighting was described by Mr. Alexander as being “dull”. After the men came behind Mr. Regis, Mr. Alexander saw Kimron Bengy and a man he knew as “Copper” come and stand beside Edwin Modeste. Mr. Alexander did not know what was said, but saw a fight break out after that point. The fight broke out within seconds of Mr. Alexander first seeing Dexter Regis facing Edwin Modeste with the baseball bat. Mr. Alexander observed what he described as a scuffle. He saw a couple of hands and fists in the air. He could not say who was punching who. In five, or possibly eight seconds, Mr. Alexander saw people running away. He saw the people who were around the location of the fight run away.

[267] Mr. Alexander testified that he saw Kimron Bengy in the fight. He did not see Edwin Modeste physically fighting. He assumed that Copper was involved in the fight, but he never actually saw Copper fight. Mr. Alexander testified that from his vantage point for the Brandon Ramdeen fight, he did not see a bat being used. He did not see any weapons. When people were running away, he got a glimpse of Edmund Benjamin, running away. Mr. Alexander at the time was also running.

[268] Mr. Alexander testified that he ran when he saw others run. He didn’t want to stick around or get involved. Mr. Alexander testified that he went back into the parking lot. At that point he saw a man he knows as “Dallo”. Mr. Alexander asked Dallo if he was driving, but Dallo simply stood there looking at him. Dallo appeared to be drunk. Mr. Alexander then saw a man named Kitson Robertson. He asked Mr. Robertson if he was driving. Mr. Robertson pointed to his car which was right beside the area where Mr. Alexander had been speaking to Dallo. Mr. Alexander got into Kitson Robertson’s car. In that car was Edwin Modeste, a girl who was with Edwin, Copper and Andre Julien, in addition to Mr. Robertson who was driving. In cross-examination Mr. Alexander said that he was not sure where his own car was parked but he assumed it was near the area of the fight and he did not want to go near that area.

[269] Mr. Alexander testified that it was while he was in the car that he became aware that Andy James and Brandon Ramdeen had been stabbed. Mr. Alexander was not previously aware that Andy James had been stabbed. He did not see Brandon Ramdeen in the fight until he saw him on the ground after the fight was over and when people were running. At the time he did not know it was Brandon Ramdeen on the ground.

[270] Mr. Alexander testified that after getting out at Edwin Modeste’s house, Anski Julien came to the house and returned Mr. Alexander’s car keys to him. Mr. Alexander took his car and left. Mr. Alexander was at Edwin Modeste’s house for about one-half hour.

[271] Mr. Alexander spoke to the police three to four days later. He spoke to the police because he had gotten a call from Edmund Benjamin who told him that they should go to the police and tell the police what they knew. Mr. Alexander testified that he was reluctant to go to the police because he took the view that he had not done anything wrong. He also said that he did not trust the police. Nevertheless, he did go to the police with Edmund Benjamin and Kitson Robertson. Mr. Alexander gave the police a statement. When he spoke to the police, he did not give the police the name of “Copper” as a person who was near the fight with Brandon Ramdeen. Mr. Alexander explained that before Copper got out of the car in the early morning hours of June 21, 2009, Copper said that he didn’t want anyone to call his name and if anyone did, he was going to come and look for them.

[272] Mr. Alexander was not arrested immediately for either of the homicides. However, about five months later he turned himself in, having been told he would be charged with manslaughter. He was charged with the manslaughter of Brandon Ramdeen and spent some period of weeks in custody before he was released on bail.

[273] When he was first placed in custody, he was put on a range in the detention centre with Kimron Bengy. Mr. Alexander testified that Mr. Bengy immediately ran over to him and that they were initially excited to see each other. He had a conversation with Mr. Bengy. Mr. Bengy asked what he was doing there. Mr. Alexander told Mr. Bengy that he was charged for killing Brandon Ramdeen. Mr. Bengy replied, “An idiot thing, that.” Mr. Alexander pulled Mr. Bengy aside and asked him, “What happened? Did you stab those guys?” Mr. Bengy said, “Yeah.” Mr. Bengy told Mr. Alexander that he was going to admit to one stabbing. He offered Mr. Alexander an explanation with respect to two-for-one for time in custody and said to Mr. Alexander that if he was convicted, he would get out in four to five years. There was further discussion between the two about trying to get Mr. Alexander into the same cell as Mr. Bengy. Mr. Bengy gave Mr. Alexander advice about how he should act on the range and then Mr. Bengy ended the conversation.

[274] Mr. Alexander did not return to that range after he attended court the next day. There was never any further conversation between him and Mr. Bengy.

[275] Mr. Alexander was not able to recount verbatim the contents of the statement by Mr. Bengy.

[276] Mr. Alexander testified at the preliminary inquiry and at the trial of Mr. Modeste and Mr. Bengy. It was not until he was being cross-examined by counsel for Kimron Bengy at Mr. Bengy’s trial that Mr. Alexander first mentioned the conversation in the jail. When asked why he did not mention it at the preliminary inquiry in 2011, Mr. Alexander testified that he “didn’t feel like it”. He also said that for all he knew, the Crown already knew about Mr. Bengy confessing. Mr. Alexander said that he spoke to Edmund Benjamin and that Mr. Benjamin said that Mr. Bengy had said the same thing to him in the car.

[277] Mr. Alexander applies to have the evidence of Mr. Bengy’s statement in the jail admitted for its truth under the principled approach to the hearsay rule. The Crown conceded necessity, but argued that the evidence did not meet the standard of threshold reliability. I have concluded that the evidence is admissible.[^8]

[278] Mr. Alexander denied ever saying anything on the boat about a gun or shooting. When questioned about ever saying anything about a gun he said, “Not to Andy” and when he was questioned further about saying it to anyone he said, “not that I recall.” Mr. Alexander conceded that he did not remember everything he said when he was angry.

[279] Mr. Alexander denied any involvement in the Brandon Ramdeen fight. When asked why he didn’t get involved, he testified that Anna George was hitting him and that by the time she finished hitting him and he looked at the fight, it happened so fast the fight was over.

[280] Mr. Alexander could not recall what Anski Julien was wearing, or what Edwin Modeste was wearing. He believed that Kimron Bengy was wearing a white t-shirt. Mr. Alexander was also wearing a white t-shirt. His white t-shirt had a design on it. He agreed that he did not remember about the design until he saw the picture.

[281] Mr. Alexander was asked what happened to his t-shirt that he wore on the boat cruise. He said that he probably threw it away. He agreed that he did not bring it to the police station. Mr. Alexander said it was three years ago and he couldn’t remember what he did with the t-shirt. He did not think that he still had it. He testified that he buys cheap white t-shirts and gets rid of them sometimes. He said that maybe it was torn or stretched ‑ he didn’t know. He said he wasn’t exactly sure if he mentioned it being torn, but it’s possible. He then agreed that he remembered that the t-shirt was torn the night of the boat cruise.

[282] It was suggested to Mr. Alexander that the t-shirt got torn in the altercation with Andy James. Mr. Alexander’s response was that he thought it could have gotten torn when Anna George grabbed the shirt and punched him. Mr. Alexander agreed that he did not tell the police that his t-shirt was torn on the night of the cruise. He explained that he did not think that that had anything to do with the incident.

[283] Mr. Alexander described, in cross-examination, that Andy James grabbed his arm. It was put to him that he told the police that Andy James grabbed his shoulder. Mr. Alexander agreed that he had told the police that Andy James grabbed his shoulder. Mr. Alexander said that the police did not ask him to demonstrate what Andy James had done. However, he was taken to the video tape of the statement to the police in which he asked if he could stand up and show them. He did, on the video tape, stand up and demonstrate to the police how Andy James touched him as he passed. On the video tape, in addition to saying that Andy James grabbed his shoulder, Mr. Alexander demonstrated by placing his hand on his shoulder. Mr. Alexander testified that to him, “shoulder” means “upper arm”.

[284] He stated that he now knows the difference between “arm” and “shoulder”, but that where he’s from, that’s how they talk. There is no difference between “arm” and “shoulder”.

[285] Mr. Alexander agreed that he didn’t tell the police that his t-shirt sleeves were rolled up when Andy James grabbed him. He could not recall any broken skin. He agreed that he did not tell the police that Andy James touched his skin. He stated that he did not know that it was an issue.

[286] Mr. Alexander was taken to his police statement where he was questioned about the Brandon Ramdeen fight and he said that Edwin Modeste was there, but did not mention Sico and Copper. Mr. Alexander said that he later told the officer that Sico was around the fight.

[287] In cross-examination, Mr. Alexander insisted that he did not in fact see Sico in the fight. He assumed Sico was in the fight. Mr. Alexander agreed that he told the police that Edmund Benjamin was at the fight and involved in the dispute. Mr. Alexander stated that what he meant was that he saw Mr. Benjamin “around” the fight. The question asked, however, by the police was: “Who was in the dispute?” At that point, he named Edwin Modeste, Kimron Bengy and Edmund Benjamin. His explanation for the apparent inconsistency is that he understood the question to be, “Who was in the area?”

[288] Mr. Alexander was cross-examined about conversations that he had with Mr. Benjamin after the incident. He could not recall Mr. Benjamin saying that his name had been “called”. He could recall that Mr. Benjamin said that Greenz Connection was being spoken about in the community. It was suggested to Mr. Alexander that he knew that people were “calling his name”. He agreed that he heard that. He agreed that before he went to the police, he heard that Edwin Modeste had been arrested for the murder of Andy James and that Kimron Bengy had been arrested for the murder of Brandon Ramdeen. He agreed that he considered himself to be friends with the people associated with Greenz Connection.

[289] Mr. Alexander agreed that he spoke with Anski Julien before he went to the police. He did not recall speaking to Mr. Julien multiple times. He said that he spoke mostly to Mr. Benjamin. Mr. Alexander agreed that it was possible that he spoke with Anski Julien about the events that took place the night of the cruise.

[290] Mr. Alexander agreed that he went home with Edwin Modeste after the event and agreed that he spoke to Edwin later on the Sunday, June 21, 2009. Mr. Alexander only recalled speaking to Edwin Modeste one time. Mr. Alexander reported that Mr. Modeste phoned Mr. Alexander and said that people were “calling” his name and that Mr. Alexander should go to the police and say what he knew. Mr. Alexander said that he told Mr. Modeste that he didn’t do anything wrong and so why should he go to the police. He did not speak to Edwin Modeste again.

Kimron Bengy

[291] Kimron Bengy was called as a defence witness. Mr. Bengy affirmed and then refused to answer any questions. He was given an opportunity to consult with counsel and the trial was adjourned over a weekend. Mr. Bengy returned on the Monday and again refused to answer any questions. Mr. Bengy was cited for contempt.

[292] As a result of Mr. Bengy’s conduct, the Crown agreed that necessity had been made out and that Mr. Bengy’s statements to the police and his prior testimony at the preliminary enquiry were sufficiently reliable to meet the standard for admissibility under the principled approach to the hearsay rule.

[293] The prior statements and testimony of Mr. Bengy can be summarized as follows.

[294] Kimron Bengy gave a brief statement to Detective Palermo that was recorded in Detective Palermo’s notes as follows:

• Kimron Bengy and a friend were on a boat cruise at the docks and when they returned, they were in the parking lot

• “A guy” came up to Mr. Bengy’s friend, Edwin Morris (sic) with a metal baseball bat

• The guy pushed Mr. Bengy’s friend and stepped back to swing

• A second guy came up and “boxes Edwin in the head”

• Mr. Bengy walked up and asked what was going on

• The guy with the bat and the second guy who punched Edwin rushed Mr. Bengy

• Mr. Bengy had a knife in his pocket and he pulled it out because of “all the things that are going on”

• When they rushed Mr. Bengy, the knife stuck into the second guy and he fell to the ground

[295] Following his statement to the first detective, Mr. Bengy was arrested and interviewed by police on video. His version of events in that statement may be summarized as follows:

• Mr. Bengy was picked up from his home at 4 Greenbrook Drive that evening around 8:30 p.m. He arrived at the boat cruise with Anski, Shaggy, and Buja in Buja’s car. He got on the boat around 10:00 p.m. and had maybe three Heinekens. The boat cruise was uneventful. When he left the boat, he was about in the middle of the pack. He left the boat by himself; Edwin had gotten off before him.

• Mr. Bengy walked to Buja’s car but Buja was not there yet. Anski and Shaggy were already there. Edwin was heading towards his car. Mr. Bengy then saw Edwin running to pull Buja away and into his car and to stop him from getting into a fight. Some guy was trying to hold Buja and talk to him. Edwin managed to pull Budja away and they went towards Edwin’s car. All of a sudden, these guys approached Edwin. One guy had a silver, metal baseball bat. Edwin got hit by these guys. When the guy with the baseball bat was about to swing, Mr. Bengy ran over and asked “what happened” or “Wha’ g’wan?”

• Mr. Bengy saw one of the guys pulling out or grabbing something from his waist. This is when the two guys rushed him. Mr. Bengy pulled his knife out and the guy without the baseball bat got stabbed; he ran into Mr. Bengy’s knife. Mr. Bengy was unsure how the guy got stabbed and where the knife hit him.

• Mr. Bengy did not know what happened to Buja because of the altercation with Edwin and the two guys.

• After the altercation, Mr. Bengy left with Anski and Shaggy in Buja’s car. Buja had already left, but had given Mr. Bengy the keys to his car. Shaggy drove out of the parking lot, but Anski drove the rest of the way home.

• Mr. Bengy phoned Edwin and Edwin told him to turn himself in or talk to the police.

[296] Mr. Bengy was called as a witness at the preliminary inquiry. His evidence at that proceeding may be summarized as follows.

• Mr. Bengy drove to the boat cruise with Buja, Shaggy, and Anski, and thinks it was in Buja’s car. Mr. Bengy could not remember when they arrived at the boat cruise. He walked onto the boat cruise with Anski, Shaggy, and Buja. Mr. Bengy drank two or three Heinekens. He was with two male friends from Montreal on the cruise. Mr. Bengy admitted bringing a small, brown pocket knife on the boat that he often has in his pocket, which he uses to peel oranges and mangoes.

• After the cruise, Mr. Bengy never spoke to Buja when Buja got off the boat, he only saw him. A guy brought Buja off the boat, holding his arms, taking him to the parking lot. This was not a fight.

• After Mr. Bengy got off the boat and before Mr. Bengy got into the car, he saw Edwin pulling Buja away from the same guy that brought him off the boat, but Mr. Bengy kept walking because it did not concern him. Edwin was pulling Buja off the guy because Buja was trying to get to him. Mr. Bengy was close by. They were standing by the entrance to the boat (between 10 to 12 ft away) but he did not say anything to anybody. He did not assist Edwin because there was no reason to do so.

• Mr. Bengy walked towards the car he arrived in. He had the keys to Buja’s car because Buja had given them to him. He was waiting in the car, but he had gotten out and was standing next to the car when he saw someone trying to hit Edwin with a silver baseball bat. In examination in chief he said that he did nothing when he saw this happen. He was about 22 ft away. Mr. Bengy denied getting into a fight with anyone after the boat cruise and denied suffering any injuries

• Under cross-examination, Mr. Bengy testified that he had gotten out of the car when he saw someone with a baseball bat or scuffling with Edwin. One of the guys was trying to hit Edwin with a baseball bat or punch him about 20 to 22 ft from where Mr. Bengy was standing. Mr. Bengy went over to help. When he asked, “What’s going on?” there was no response. At that point two guys rushed over to him trying to get into a fight with him. The man with the bat attacked Mr. Bengy with his fists and the other guy reached into his waistband to get something. One of these guys threw the first punch. At this point, Mr. Bengy did not know what happened to Edwin because he was faced with two attackers. Mr. Bengy fought back with his fists and was trying to get a guy off of him. Mr. Bengy took the knife out when he got the guy off of him and he was walking back to the car, or when he was at the car. Mr. Bengy’s knife was in his left hand, but it was not open and it was never opened at any point during that night. Mr. Bengy insisted that the knife was not pulled out until after the fight. He did not have a reason for pulling out the knife. After the fight, Mr. Bengy went back to the car. That is when the fight ended.

• Anski and Shaggy got to the car after Mr. Bengy watched the Edwin incident. After Anski and Shaggy got in the car, they left. Buja did not leave with them. Whoever was driving dropped Mr. Bengy off at home.

• In examination-in-chief Mr. Bengy testified that after he got home, he went to bed. He did not speak to anyone when leaving the boat cruise. He did not discuss what happened after the boat cruise with Shaggy, Anski or Edwin.

• In cross-examination Mr. Bengy agreed that he went to bed and woke up and then spoke with Edwin on the phone and in person. Anski was there when Mr. Bengy went to go see Edwin in person.

• Mr. Bengy walked to the police station to give a police statement after he woke up the next day. Mr. Bengy denied telling the police that he stabbed someone, stating that the knife was not open and that it did not make contact with anyone

• Mr. Bengy did not know where the knife was anymore

Part iii -credibility and reliability

[297] Having summarized the evidence I will now move to my assessment of the credibility and reliability of the witnesses.

Dexter Regis and Collins George

[298] There are particular reasons for me to be cautious in relying on the evidence of Dexter Regis and Collins George. Both were admittedly part of a group of men who set out in the early morning hours of June 21, 2009 to confront or actually fight with the person or persons that they believed were responsible for the attack on Andy James. More significantly, both admitted that they told lies under oath. The lies were not with respect to peripheral or irrelevant matters but with respect to matters central to the attack on Brandon Ramdeen. I have carefully considered the factors that impact on the credibility and reliability of Mr. Regis and Mr. George including alcohol consumption, inconsistencies between their evidence and the evidence of other witnesses, discussions with others that may have influenced their testimony, improbabilities and the admitted lies. I will now address these factors and I will also set out the evidence that is potentially confirmatory of their testimony.

Dexter Regis

Prior Admitted Lies under oath

[299] Mr. Regis gave a sworn statement to the police on June 24, 2009. In that statement Mr. Regis lied.

[300] When he first described the incident to the police, he did not tell the police about the bat that he carried in the parking lot. He only told the police about the bat after they asked if he had one. When he was specifically asked about a baseball bat Mr. Regis said: “I had a piece of stick, I wouldn’t lie.” He was then questioned more closely about the object and admitted that it was a baseball bat. He told the police that he picked it up off of the ground.

[301] Mr. Regis admitted that he lied to the police about the bat. He said he didn’t want to talk about the bat because the bat had nothing to do with anything.

[302] Mr. Regis told the police that Shaggy and Anski (Edmund Benjamin and Anski Julien) were not involved in the fight with Brandon Ramdeen. He told the police that no DJ’s were involved in the fight with Brandon Ramdeen. Mr. Regis at trial testified that this was a lie. He explained that he told the police this lie because he did not want to become involved in the case.

[303] Mr. Regis testified that he got rid of the baseball bat before going home because it was not his. He denied that he thought he could get in trouble for the bat. He was taken to his testimony at the preliminary inquiry where he was concerned that the police would think that he was involved and he was afraid that he could get in trouble with the police. When questioned about this inconsistency Mr. Regis said, “I guess I just lied.”

Prior Inconsistent Statements

[304] Mr. Regis made prior statements to the police and gave evidence in prior proceedings that were not consistent with evidence at this trial.

[305] In his evidence at trial he testified that he didn’t know if he picked the bat up off the ground or if he grabbed it from somebody. When taken to his testimony at the preliminary inquiry for Mr. Bengy and Mr. Modeste in which he testified that he grabbed it from somebody Mr. Regis adopted that statement.

[306] Mr. Regis told the police in his sworn statement on June 24, 2009 that he went up to Mr. Modeste “in a nice way.” He agreed in his testimony at this trial that he was upset when he went up to Edwin Modeste and that it was not accurate to say that he went up to him “in a nice way”.

[307] Mr. Regis in his testimony at this trial said that he saw the man he identified as Leon Alexander and referred to as ‘the dread’ get into a car and leave. In his testimony at the preliminary inquiry he said that he did not see where Mr. Alexander went and he did not see him get into a vehicle.

[308] Mr. Regis testified, in his examination-in-chief, that he did not know if Collins George was behind him as he walked towards Edwin in the parking lot. In cross-examination he was taken to his testimony at the Bengy and Modeste preliminary inquiry where he said he spoke to his friend Collins and that Collins was coming with him – he was in front and Collins was behind. Mr. Regis adopted this statement.

Inconsistencies with other witnesses/evidence

[309] There are some aspects of Mr. Regis’s evidence that are inconsistent with the evidence of other witnesses.

[310] Mr. Regis testified that Kenrick Williams was walking by Andy James when Mr. Regis spoke to Mr. James and learned that Edwin had stabbed him. This is inconsistent with the evidence of Kenrick Williams who testified that he was unaware of Andy James being stabbed until he was told of the stabbing by Collins George. He was not near Andy James because he had pulled Mr. Alexander away and into the parking lot.

[311] Mr. Regis’s evidence that he did not know who Edwin was when he went into the parking lot is inconsistent with the evidence of Collins George who testified that he was relying on Mr. Regis to find Edwin because Mr. Regis knew who he was.

Improbabilities

[312] Mr. Regis agreed that Andy James named Edwin as his assailant and that he only knew one Edwin, but he insisted that he did not realize who the ‘Edwin’ was who had been named by Andy James until he was close to him. It seems improbable that it would not occur to him that the ‘Edwin’ who was named was the one person named Edwin who he knew.

Alcohol Consumption

[313] Mr. Regis drank alcohol on the evening of June 20, 2009. When they arrived at the parking lot, several of the men put money together and two of them went to the liquor store and picked up two bottles of liquor. About 10 people drank from the two bottles. Mr. Regis had about 3 drinks from the bottles. Under cross-examination he agreed that he may have had as many as 5 or 6 drinks in the parking lot. On the boat he had 5 to 6 Heinekens. While Mr. Regis described himself as only a little tipsy and not intoxicated, the level of alcohol consumption he described could have impacted on his ability to accurately perceive and remember the events of the night.

Identification/Ability to Observe

[314] Mr. Regis did not know Mr. Alexander before June 20th to 21st 2009. He had seen him before but had never spoken to him. After telling the police about the involvement of the guy he called “the Dread” he was not shown a photo line-up. He identified Mr. Alexander as “the Dread” in court when he was seated at counsel table.

[315] Mr. Regis did describe ‘the Dread’ to the police in his statement on June 24, 2009. He described him as the same height as Mr. Regis who was 6’1”, with long dreads to his shoulder, dark skin, slim build, maybe late 20’s. This description is consistent with Mr. Alexander’s appearance, but is fairly generic.

Discussion with others

[316] Mr. Regis agreed that ‘everybody was talking about what they saw’ after the events of June 21, 2009. People called him. He talked about what he saw.

[317] He spoke to Collins George about what had happened.

Flight

[318] Mr. Regis left the parking lot immediately after Brandon Ramdeen fell to the ground. He left in a different vehicle than he arrived in and he left with different people. He brought the baseball bat with him in the car. He disposed of the baseball bat before going home.

Consistency with other Evidence

[319] Some aspects of Mr. Regis’s evidence are confirmed by other witnesses and other evidence. The evidence that Mr. Regis had a bat, but that it did not strike anyone is confirmed by Kenrick Williams and Holford Lewis. The evidence that the short dark man came and tried to take the bat from Mr. Regis is confirmed to some extent by Kenrick Williams who saw someone try to grab the bat from Mr. Regis. The evidence of Holford Lewis that Dexter Regis was beside him during the fight is consistent with Mr. Regis’s evidence as to his location during the fight. The statement of Kimron Bengy to the police admitting that he had a knife and that he used the knife in the fight with Brandon Ramdeen provides some confirmation of Mr. Regis’s evidence that he saw a short dark man with a St. Vincent’s or Jamaican accent stand with his arms folded and a knife in his hand after Brandon Ramdeen was stabbed and heard him say, “What now?” Mr. Bengy is short, dark-skinned and is from St. Vincent.

[320] Mr. Regis’s evidence that the five men fighting Brandon Ramdeen were Edwin Modeste, Edmund Benjamin, Anski Julien, Leon Alexander and the short guy is confirmed by the evidence of Collins George. It is also confirmed somewhat by the evidence of Kenrick Williams that he saw Edwin Modeste, Leon Alexander, Edmund Benjamin, Anski Julien and others back up from the fight when it ended.

Collins George

Prior Lies under oath

[321] Mr. George testified at the trial of Mr. Bengy and Mr. Modeste. He was asked when he had come to Canada and said that he came in 2006. He really came to Canada in 1995. He explained that he came legally to Canada in 2006.

[322] In his statement to the police on June 21, 2009 Mr. George told the police that he did not know who asked Edwin the question about stabbing Andy. In fact, he knew that it was Dexter Regis who had questioned Edwin. He had no explanation for this lie to the police.

Prior Inconsistent Statements

[323] Mr. George testified that he never asked Dexter Regis who Edwin was. At the preliminary inquiry for Mr. Bengy and Mr. Modeste he testified that Dexter came up to him and said that Andy said Edwin stabbed him and he asked “who Edwin?”

[324] Mr. George while insisting in his testimony that there was no discussion between the men who went into the parking lot to look for Mr. James’s assailant, also said that Dexter Regis ‘said the same thing to him’ in reference to the assailant being ‘Edwin.’

Inconsistencies with other witnesses/evidence

[325] Mr. George denied seeing or speaking to Kenrick Williams. This is inconsistent with Mr. Williams’ evidence that Mr. George told him that Andy James had been stabbed.

[326] Mr. George testified that he pushed Edmund Benjamin and Anski Julien away from Brandon Ramdeen but this was not observed by Dexter Regis, Holford Lewis or Dixon Henry all of whom testified that they were watching the altercation.

Improbabilities

[327] Mr. George testified that he walked through the parking lot behind Dexter Regis and spoke to him before they headed through the lot, but he did not see Dexter Regis holding a baseball bat. It is improbable that Mr. George did not see the baseball bat carried by Dexter Regis.

Alcohol Consumption

[328] Mr. George drank at the cook-up at Andy Natoo’s house before going to the cruise. He testified that he had a ‘couple’ of Guiness and a ‘couple’ of shots of alcohol. In the parking lot before the boat left he had a ‘couple’ of shots from the bottles that they had purchased. Mr. George testified that to him a ‘couple’ means 3, 4 or 5. On the boat he drank Heineken. He could not say how many, but it was more than 2.

[329] Mr. George testified that he did not feel intoxicated at the end of the cruise. Mr. George gave a videotaped statement to the police from 5:42 to 6:16 a.m. on June 21, 2009 or about three hours after the fighting. The DVD is Exhibit 35A. In the DVD Mr. George does not appear to be intoxicated.

Identification/Ability to Observe

[330] When asked to describe the man he identified as Shaggy or Edmund Benjamin Mr. George said that he had light skin, was probably 5’6’, 5’7” or 5’8” tall, had dreadlocks possibly to his shoulders and a clean shaven face. He was wearing a shirt, possibly a dark green shirt with a collar.

[331] Mr. Benjamin is about 5’7” or 5’8”; he has light skin and wore his hair in dreadlocks. He was not clean-shaven on June 21, 2009. He was wearing a grey collared shirt.

[332] Mr. George knew both Edmund Benjamin and Leon Alexander but had no relationship with them. He had known Mr. Benjamin for about 3 years and Mr. Alexander for a couple of years.

Discussion with others

[333] Mr. George testified that after the fight in the parking lot there was a lot of talk about what had happened. Mr. George heard from others about the dispute between Andy James and Leon Alexander on the boat and heard that it was because Mr. Alexander had passed by and touched Mr. James’s girlfriend.

Consistency with other Evidence

[334] Mr. George’s evidence that the short dark man went around him and that following this Brandon Ramdeen appeared to react to something that the short man had done is consistent with the evidence of Dexter Regis that the short man came around and tried to take the bat. It is consistent to some extent with Mr. Bengy’s statement that the man swung the bat and that he then entered the fight with his knife out and confronted a man behind the man with the bat. It is also confirmed somewhat by the evidence of Kenrick Williams that he saw someone try to grab the bat from Dexter Regis.

[335] Mr. George’s evidence that the five men fighting Brandon Ramdeen were Edwin Modeste, Edmund Benjamin, Anski Julien, Leon Alexander and the short guy is confirmed by the evidence of Dexter Regis. It is also confirmed somewhat by the evidence of Kenrick Williams that he saw Edwin Modeste, Leon Alexander, Edmund Benjamin, Anski Julien and others back up from the fight when it ended.

Approach to the Evidence of Dexter Regis and Collins George

[336] In light of the admitted lies of Mr. Regis and Mr. George under oath and the inconsistencies between their testimony at this trial and their previous statements under oath, I have concluded that I must approach their evidence with the utmost caution. Both Mr. Regis and Mr. George appeared willing to lie to hide their involvement in the altercation and to hide the involvement of others. Since the actions of the participants in the fight are central to the determination of this case, this willingness to lie affects the core issues in this trial. In all of the circumstances I have concluded that it would be dangerous for me to rely on their evidence insofar as it points to the guilt of the accused except where it is confirmed by other evidence.

Anna George

Prior Inconsistent Statements

[337] Ms. George gave a sworn statement to the police the morning of June 21, 2009 while Mr. James was in the hospital. In that statement she told the police that every time Mr. Alexander passed he touched her hand or her leg. Ms. George explained the reference to Mr. Alexander touching her hand by saying that when she said “hand” she meant arm. She had no explanation for the reference to Mr. Alexander touching her leg except to say that she was unsure what part of her body Mr. Alexander had touched.

Inconsistencies with other witnesses or evidence

[338] Ms. George’s evidence that she was struck by Mr. Alexander when he was waving his hands and trying to hit Andy James is not consistent with the observations of other witnesses. However, viewed with the totality of the evidence this is not a significant inconsistency as it is likely that the attention of the observers was focused on Andy James and Leon Alexander. Ms. George’s evidence on this issue was credible. She did not try to embellish or to suggest that the blow was deliberate.

[339] Ms. George’s evidence that Michelle Phillip said “watch your back” when Ms. George and Andy James left the boat is not consistent with Michelle Phillip’s account of her words. However, again, I do not view this difference as significant. Ms. Phillip recalled uttering words of caution to Andy James and Ms. George recalled hearing words of caution. The difference in the words is not important in assessing the credibility or reliability of either witness.

[340] A more significant inconsistency between the evidence of Ms. George and the evidence of Ms. Phillip is that Ms. George recalled Ms. Phillip pulling her away just after the three men ran past her and Ms. Phillip recalled doing so when Ms. George was hitting Leon Alexander. This difference does not impact significantly on the reliability of Ms. George’s account of the important events of the evening. Ms. George had reason to recall in detail her movements that evening. Ms. Phillip did not turn her mind to the sequence of events until about five months after the incident. I find that Ms. George’s evidence is reliable with respect to her movements on June 21, 2009. Ms. George continued into the parking lot after seeing the three men run past. After some time passed she walked back and saw Leon Alexander and grabbed him.

Discussion with others

[341] Ms. George agreed that she spoke to many people about the incidents although she said that she did not speak in detail about what happened and she was not affected by what she heard. She agreed that rumours were circulating after the event. One such rumour was that she and Mr. Alexander had been dating. She was sufficiently concerned about this rumour that she arranged for someone to make a three-way telephone call to Mr. Alexander in which she participated and told Mr. Alexander to speak to Anski Julien and tell him not to say such things.

[342] Ms. George also testified that she was of the view that the whole Greenz Connection group instigated the incident. She said that they all hung out together. Although she had not seen Anski Julien do anything she gave his name to the police because of his connection to Greenz Connection.

[343] While I accept that there was a great deal of discussion of the events and that Ms. George was part of such discussions, I do not find that Ms. George’s testimony, on the central events of the evening, was affected by such discussion. While she may have blamed all of the group for the incidents, she did not alter her evidence to say that she saw anyone other than Leon Alexander and Edwin Modeste and the short dark man rush towards Andy James.

Credibility and Reliability of Anna George

[344] Ms. George was, for the most part, a credible and reliable witness. While she likely exaggerated the extent of the touching by Leon Alexander in her discussions with others and in her initial police statement she did not do so in her testimony. She, understandably, appeared to harbor some animosity towards those she saw as connected to Greenz Connection and she appeared to blame all individuals associated with the group for the incidents. This animosity did not impact on the reliability of her evidence. To the extent that her evidence differed from that of Michelle Phillip as to when and where they interacted, the evidence of Ms. George is more reliable and consistent with the totality of the evidence.

Michelle Phillip

Inconsistencies

[345] Michelle Phillip testified that she observed the altercation between Leon Alexander and Andy James in the parking lot while standing under the roof of the shed at the exit to the boat. This is not consistent with the evidence of Anna George who said that Michelle Phillip was in the parking lot with Ms. George when the three men rushed towards Andy James or very soon after. Michelle Phillip also testified that she saw Anski Julien involved in the altercation with Andy James, pulling Leon Alexander off of Andy James. This is not consistent with the other witnesses to the event. Ms. Phillip testified that she saw Anna George pulling Andy James from the fight. This is not consistent with the other witnesses particularly Ms. George. Ms. Phillip conceded in cross-examination that she could be mistaken about seeing Anski Julien at the altercation with Andy James.

[346] Ms. Phillip testified that she pulled Anna George away from Leon Alexander later in the parking lot when Ms. George was confronting Mr. Alexander. This is inconsistent with the evidence of Ms. George and the evidence of Leon Alexander.

Passage of Time and Discussions with Others

[347] Ms. Phillip was not approached by the police to give a statement until five months after the incident. She agreed that there was a lot of talk in the community in the months following the incident. She worked in a hair salon during this time and there was talk in the hair salon. She agreed that there was a lot of talk about Greenz Connection being responsible for the events. She knew Anski Julien, Edmund Benjamin and Leon Alexander to be associated with Greenz Connection.

Identification/Ability to Observe

[348] Ms. Phillip, when she observed all of the events was tired and was looking for her husband. She said that she glanced at the fights and glanced away to look for her husband. She was about 29 feet from the Andy James fight and 40 to 50 feet from the Brandon Ramdeen fight. She agreed that things were moving quickly. She agreed that she was upset and nervous. She agreed that she assumed Leon Alexander was involved in the Brandon Ramdeen fight because of his aggressive behavior earlier. She agreed that she could be mistaken about Mr. Alexander’s involvement in the fight with Brandon Ramdeen. Ms. Phillip was certain that she saw Anski Julien, Edwin Modeste and Leon Alexander get into the same car and leave. This is not consistent with the unchallenged evidence of Leon Alexander that he left with Edwin Modeste, a girl, Kitson Robertson and Andre Julien. Ms. Phillip knew Andre Julien and knew him to wear his hair in long braids.

Assessment of Credibility and Reliability

[349] I find that Ms. Phillip’s ability to accurately observe the events was affected by the distance and by her focus on finding her husband. Her ability to recall the events was affected by the passage of five months between the events and her first statement to the police. I find that she was a sincere witness who was trying to tell the truth but that she had difficulty in distinguishing between what she actually observed and what she later heard or assumed. While Ms. Phillip was able to see portions of the two fights and the confrontation between Anna George and Leon Alexander, her identification of the individuals in the fights was not reliable because of the conditions under which they were made. Her recall of her own positions and movement was compromised by the passage of time between the events and the taking of her statement five months later.

Alex Lewis

Implausibility

[350] Mr. Lewis denied knowing who assisted him in intervening in the initial confrontation between Andy James and Leon Alexander on the boat and who took Mr. Alexander off the boat. He maintained this position even after conceding that ‘Bob’ is his cousin. Kenrick Williams testified that he and Alex Lewis were cousins.

Discussion with Others

[351] Mr. Lewis agreed that there was a great deal of talk about the events and that he spoke to Eric Mitchell and others about what he observed.

Assessment of Credibility and Reliability

[352] Mr. Lewis was not clear about whether he failed to notice who had helped him or whether he did not know the person. While his evidence that he did not know his cousin’s name is problematic, his evidence was otherwise credible.

Eric Mitchell

Inconsistencies/Implausibilities

[353] Eric Mitchell and Ryan Noel testified that they were together watching the fight involving Brandon Ramdeen. Eric Mitchell said that he was about 50 metres away from the fight. Ryan Noel said that they were about 48 feet away. Fifty metres is significantly further than 48 feet.

[354] Eric Mitchell said that he had gone back to the boat before the fight with Brandon Ramdeen ended. Ryan Noel testified that Eric Mitchell was with him outside the boat watching until the police and ambulance arrived.

[355] Mr. Mitchell testified that Edmund Benjamin was kicking and punching Brandon Ramdeen. He was taken to his testimony at the preliminary inquiry where he said that Mr. Benjamin was kicking but not punching because he was not that low. When taken to this testimony and asked to explain Mr. Mitchell said, “kicking and punching- I’ll stick with that.” Later he said that Mr. Benjamin was not punching. Mr. Mitchell ultimately said that there was a flurry of activity and he believed that the three men, Anski, Edwin and Shaggy, were part of the crowd.

[356] Mr. Mitchell gave several different statements about whether he could see the face of Anski Julien during the fight with Brandon Ramdeen. In his evidence at this trial he testified that he did not see Anski Julien’s face but recognized him from his clothing. At the preliminary inquiry in May 2011 he testified in his examination in chief that that he saw Mr. Anski Julien’s face. When questioned about the difference between his evidence-in-chief at the preliminary inquiry and his evidence at trial, Mr. Mitchell testified that he first saw what Anski was wearing and then he saw his face. He was then taken to his testimony under cross-examination at the preliminary inquiry where he said that he never saw Anski’s face but only saw what he was wearing. When asked about the difference in his testimony Mr. Mitchell again said that first he saw the clothing and then he saw Anski.

[357] Mr. Mitchell testified that Mr. Benjamin was wearing a white t-shirt without a collar. He could not say whether Mr. Benjamin had a beard. He testified that he was wearing blue jeans. Mr. Mitchell agreed that when he gave his statement to the police he did not know what Mr. Benjamin was wearing.

Identification/Ability to Observe

[358] Mr. Mitchell testified that there was light in the area from a light on the shed near the entrance to the parking lot. He said that the fight occurred near the shed and the light. The physical evidence of blood, the Acura belonging to Mickey and the evidence of other witnesses does not support Mr. Mitchell’s assertion that he saw the fight near the parking shed.

[359] On Mr. Mitchell’s evidence he was 50 metres from the fight.

Discussion with Others

[360] Mr. Mitchell spoke to police before leaving the parking lot that night. He did not tell them that he had seen the fight. He did not go to speak to the police until June 23, 2009. Mr. Mitchell testified that he was too upset and shocked to go to the police before that day. He agreed that he spoke to a reporter from the Toronto Star on June 22, 2009.

[361] Mr. Mitchell testified that after the incidents “everyone was talking.” He heard many rumours and gossip. He had numerous conversations with Ryan Noel about what happened. He had heard that the incident began because of Anna George being harassed by Leon Alexander but he could not say who had told him this. He repeated this to the media and to the police.

Consumption of Alcohol

[362] Mr. Mitchell denied consuming an amount of alcohol that would cause him to be intoxicated. He denied that he was drinking or providing alcohol in the parking lot before the cruise except to have a drink with Andy James. He said he brought nothing more than a 6-pack with him in his car to the cruise. Mr. Mitchell was shown the photographs of the trunk of his vehicle containing numerous empty alcohol bottles. He explained that before getting on the boat he had picked up empties from the lot. Mr. Mitchell testified that he was not checking how much he drank on the boat. Although he testified at the Bengy and Modeste preliminary that he had only three Coronas on the boat, at this trial he said that there was ‘no way’ he had only 3 Coronas because he also had shots.

Assessment of Credibility and Reliability

[363] Mr. Mitchell’s ability to observe the events is suspect. He was vague and inconsistent about his alcohol consumption. His evidence as to his location is significantly different than Mr. Noel’s evidence although the two claim to have been together. Mr. Mitchell changed his evidence as to whether he saw the face of Mr. Julien when the fight was going on. He did not remember Mr. Benjamin’s clothing two days after the event but claimed to remember it almost three years after the event. His comment, when faced with a prior inconsistent statement on the important issue of what Mr. Benjamin was doing in the fight with Brandon Ramdeen was “Kicking and punching - I’ll stick with that”, was troubling. He demonstrated a casual attitude towards his role as a witness.

[364] Even without the inconsistencies in the evidence of Mr. Mitchell and the danger that he was influenced consciously or unconsciously by his discussions with others I would have had concerns about the reliability of his observations made, as they were, from a distance of 50 metres in the dark. I did not find Mr. Mitchell to be a credible or reliable witness with respect to his observations of the Brandon Ramdeen altercation. At best, Mr. Mitchell was able to observe a flurry of activity and he made assumptions about the participants.

Holford Lewis

Inconsistencies/Implausibilities

[365] Holford Lewis left the parking lot the night of the stabbings. He explained that his brother suggested leaving so that his van would not be stuck in the lot.

[366] He gave a statement to the police the next day. In the statement he did not tell the police that Dexter Regis and Collins George were near the fight with him. He explained that he was not asked who was near him.

[367] Mr. Lewis testified in his examination in chief that Edwin Modeste and Leon Alexander were the men who rushed Brandon and fought with him. It was suggested to him that there was a third man and he disagreed. He testified that he had a clear recollection of the fight and there was no third man. He was taken to his police statement in which he said that Leon Alexander and Edwin Modeste were the first two involved and then another man joined them- a short dark man who he saw ‘dip to his waist’. Mr. Lewis adopted this statement.

Identification/Ability to Observe

[368] Holford Lewis identified his white van in the photograph in Exhibit 18(b). The van in the photograph is facing east. In cross-examination Mr. Lewis said that his van was facing the boat which would have been south. He said that he watched in his rearview mirror as the events began. This is not consistent with the placement of the van in the photograph. Mr. Lewis testified that he did not move the van and did not give his keys to anyone else to move it. His evidence as to his location and the location of Dexter Regis and Collins George during the fight is that they were at the back of his van. His evidence as to seeing Edwin and Buja before the fight is also tied to the location of the van in that he testified that they were behind him and he watched them in the rearview mirror.

Assessment of Credibility/Reliability

[369] While I find that Mr. Lewis was attempting to tell the truth, his ability to observe the fight and the individuals involved cannot be easily assessed in light of the uncertainty with respect to his location and movements.

[370] His memory of the details of the fight was not good. He was confident that only two men were involved until he was taken to his previous detailed description of a third man. He did not recall anyone pulling people off Mr. Ramdeen until he was taken to his police statement. In that statement he said ‘people tried to pull them’ and ‘when they realized someone was bleeding they let go.’ He adopted the prior statement by saying that if he said it at the time that is what happened. He also said that he did not remember.

[371] Therefore, while I find that Mr. Lewis is sincere and attempting to tell the truth he is not reliable as to details of the fight because of the frailties of his memory and his ability to observe.

Kenrick Williams

Inconsistencies

[372] Mr. Williams confirmed that he had spoken to his cousin Alex Lewis since June 20th 2009 but denied that they ever talked about the events of that night. He denied that they discussed whether Alex Lewis spoke to the police. Mr. Williams was taken to his police statement in which he mentions to the police that he thinks that the police have already spoken to his cousin Alex Lewis. He explained that he had heard about his cousin going to the police but did not hear that from Alex Lewis. He did not remember who had told him about Alex Lewis going to the police. He agreed that there was a lot of talk and there were rumours about the events.

[373] Mr. Williams testified at this trial that Mr. Alexander made a comment about having a gun and that the comment was directed at Andy James. He agreed that he had not mentioned the comment to the police in his statement and that he did not mention it until it was suggested to him by counsel for Kimron Bengy at the Bengy and Modeste preliminary inquiry. He agreed that at the Bengy and Modeste preliminary inquiry he testified that the comment was not directed at Andy James. This is somewhat consistent with Leon Alexander’s testimony that he did not make such a comment towards Andy James. Mr. Alexander appeared at one point to suggest that he made the comment towards someone else.

[374] Mr. Williams testified that he did not see whether Mr. Alexander had any contact with Anna George after Mr. Williams had pulled Mr. Alexander away from the fight with Andy James. Ms. George and Mr. Alexander both testified that such contact occurred. I find that Mr. Williams was not paying close attention to the whereabouts of Mr. Alexander after he released him. His evidence that he did not see any contact does not affect his credibility. He did not claim that he watched Mr. Alexander consistently after he released him. Mr. Williams’ testimony on this point speaks more to Mr. Williams’ ability to observe than to his truthfulness. Mr. Williams testified that he and Mr. Alexander were in the ‘same area’ after the altercation with Andy James. He did not specify the distance between them nor did he say whether he or Mr. Alexander moved within the general area. I interpret his evidence with respect to contact between Leon Alexander and Anna George to mean that he did not see such contact. He did not say that such contact was impossible or even that he would have seen the contact if it occurred.

[375] Similarly, Mr. Williams’ evidence that he saw Andy James and Anna George walk away together was somewhat vague in terms of timing and location. It is possible that he saw Andy James and Anna George on their way to Eric Mitchell’s car or that he saw Andy James from a distance speaking to a woman who he believed to be Anna George but was in fact Lois Harewood.

Identification/Ability to Observe

[376] Mr. Williams agreed that the fight involving Brandon Ramdeen happened very quickly and that people were joining the fight from all sides. He agreed that there could have been 20 or more people converging on the fight. He could not say who was an aggressor and who was a peacekeeper in the crowd. There was a flurry of activity and punching and kicking but he could not say who was actually punching or kicking. What he was certain about was who was around the fight when people drew back.

Assessment of Credibility/Reliability

[377] I found Mr. Williams to be a credible witness. However, his identifications made from any distance more than a few feet were not reliable. He misidentified Leon Alexander as the person pushed by Dexter Regis. This misidentification suggests that he did not have a good opportunity to observe the individuals involved at the beginning of the Brandon Ramdeen fight.

[378] Mr. Williams did not see the contact between Leon Alexander and Anna George which, on all of the evidence, likely occurred after the Andy James fight and before the Brandon Ramdeen fight. Mr. Williams believed that he and Mr. Alexander were in the same area after the Andy James fight and before the Brandon Ramdeen fight but he did not say that they remained within a few feet of each other. The distance between them is not clear. I find that Mr. Williams’ observations of the location of Leon Alexander after the Andy James fight are not reliable. The lighting and confusion of the parking lot caused him to lose track of Mr. Alexander’s location and his identification of Mr. Alexander as the person confronted by Mr. Regis was an error caused by his assumption that Mr. Alexander had remained close by.

[379] Therefore, while I find that Mr. Williams was a credible and sincere witness and that his observations were reliable when he was close the people involved, I find his identification of individuals made from any distance to be unreliable.

Dixon Henry

Inconsistencies

[380] Mr. Henry testified that he and others helped pick Brandon Ramdeen up from the ground and that Mr. Ramdeen took a few steps and fell on his face. Although other witnesses saw Brandon Ramdeen get up and then fall, no other witness saw him helped to his feet.

[381] Mr. Henry was confident that he saw Leon Alexander get into Dallo’s car and drive away with Dallo. He saw Edwin leave in a car with Edmund Benjamin and Anski Julien. This is not consistent with the evidence that Edwin Modeste and Leon Alexander left with Kitson Robertson in Mr. Robertson’s car and that Edmund Benjamin and Anski Julien left in a car with Kimron Bengy.

[382] Mr. Henry testified that he and his brother helped get Andy James to Eric Mitchell’s car and that Eric Mitchell was at the car when they got there. He testified that Eric Mitchell did not help to bring Mr. James to the car. In his statement to the police he said that Eric Mitchell helped and that there were others helping but that he didn’t know who they were. Mr. Henry explained that he got mixed up between his brother and Eric Mitchell.

Discussion with Others

[383] Mr. Henry agreed that there was a lot of talk in the Grenadian community about what happened. He testified that he spoke to his brother about what happened but did not speak to others about what he saw. He listened to what others said.

Identification/Ability to Observe

[384] Mr. Henry described the person he said was Edmund Benjamin to the police as being his height or a bit taller. In previous testimony at the preliminary inquiry he described the person as being 5’3”. Mr. Henry is 5’3” tall. Mr. Benjamin is 5 to 6 inches taller than Mr. Henry. Mr. Henry explained that the man he saw was Edmund Benjamin and that he ‘did not put a measuring tape’ to the man.

Consumption of Alcohol

[385] Mr. Henry in his examination-in-chief said that he had 2 shots of rum, or more than 1 shot of rum, in the parking lot before the cruise and that he had 2 Coronas on the cruise. He denied in cross-examination that he had any rum on the cruise. On the DVD recording of the cruise there is a clip of Alex Lewis pouring white rum into a glass held by Mr. Henry. Mr. Henry is also shown with a beer can in one hand and the brand is not Corona. When shown the DVD footage in cross-examination Mr. Henry said that the DVD does not show him drinking the rum or the Heineken. He denied drinking the rum or Heineken and said that he was only holding those drinks. Mr. Henry was questioned about his interview to the police in which he said that all that he had to drink that night was two beers. He said that this was mistake. Mr. Henry denied that he had 3 or 4 or 5 drinks in the parking lot before the cruise. He was taken to his testimony at the Bengy and Modeste preliminary inquiry where he said that he had 3 or 4 or 5 drinks in the parking lot. He did not recall giving that evidence. At the Alexander and Benjamin preliminary inquiry Mr. Henry testified that he only had one Corona in the parking lot and two drinks on the boat. Mr. Henry said that he could not remember saying that.

Assessment of Credibility/Reliabilty

[386] Mr. Henry’s explanations for his prior inconsistent statements about his drinking do not make sense. I do not find his evidence as to the amount of alcohol he consumed to be credible. His willingness to mislead on this issue causes me to conclude that he is not being truthful in his evidence.

[387] Mr. Henry’s observations of the individuals that he identified as being involved in the Brandon Ramdeen fight are not reliable. He was confident that he saw Leon Alexander get into a car and leave with Dallo. He was confident that he saw Edwin Modeste get in a car with Anski Julien and Edmund Benjamin. Based on the unchallenged evidence of Leon Alexander and the statements of Kimron Bengy, Edwin Modeste and Leon Alexander left with Kitson Robertson and Anski Julien and Edmund Benjamin left with Kimron Bengy. The difference in height between the man observed to be making a stabbing motion towards Brandon Ramdeen and the height of Mr. Benjamin is significant. I find that based on these factors, Mr. Henry’s identification of the participants in the fight is not reliable.

Ryan Noel

Inconsistencies

[388] Mr. Noel’s evidence that Alex Lewis took Leon Alexander off the boat and did so alone is clearly mistaken.

[389] The evidence of Ryan Noel that when Andy James and Leon Alexander separated from fighting Mr. James said “why you do that to me?” and Mr. Alexander said “I tell you I’m going to get you” is not consistent with the evidence of Kenrick Williams who did not hear words spoken although he separated the fight and pulled Mr. Alexander away.

[390] Mr. Noel gave inconsistent statements with respect to the words spoken by Mr. Leon Alexander and when they were spoken. In his police statement he said that Mr. Alexander was up in Mr. James’s face saying, “I’m going to get you, I’m going to get you.” In the context of the statement it appeared that he was saying that this was said during the confrontation on the boat. He explained that this was in reference to the words spoken by Mr. Alexander in the parking lot “I tell you I’m going to get you.” I find that Mr. Noel could not be exact about the words spoken or when they were spoken. I cannot rely on Mr. Noel’s testimony as proof of an admission by Mr. Alexander. Depending on the words actually spoken and the timing of them, the words are equally consistent with a statement of intention to assault as they are with an admission.

[391] Mr. Noel’s evidence that he was 48 feet from the Brandon Ramdeen fight is not consistent with Eric Mitchell’s evidence that they were 50 metres from the fight. Mr. Noel’s evidence that Mr. Mitchell remained with him in the parking lot until the police and ambulance arrived is not consistent with Mr. Mitchell’s evidence that he returned to the boat.

[392] Mr. Noel claimed that he physically held Mr. Mitchell from behind during the Brandon Ramdeen fight until the police arrived and this is why he could not see the Brandon Ramdeen fight. This is not credible. It is not plausible that Mr. Noel would not look around Mr. Mitchell. It is not consistent with the evidence of Mr. Mitchell that Ryan Noel let him go and that he went back on the boat.

Discussion with Others

[393] Mr. Noel was not interviewed by the police until January 2012, two and half years after the events. He explained that he did not go to the police initially because he did not want to get involved. He also said that he believed that the police would contact him if he was needed and they did not do so until January 2012.

[394] Mr. Noel spoke to Eric Mitchell before Mr. Mitchell went to the police and after. He heard rumours in the community about what happened.

Identification/Ability to Observe

[395] Mr. Noel testified that he saw Leon Alexander and Andy James struggle on the ground. Neither Lois Harewood nor Kenrick Williams saw the two men on the ground. Ms. Harewood testified that she did not see the start of the fight. Mr. Williams testified that he did see the start of the fight. Mr. Noel changed his testimony to some extent saying that the two men dropped from sight behind a car and that he could not see them for some period of time.

Assessment of Credibility/Reliability

[396] I find that Mr. Noel was a witness who was trying to tell the truth and to remember events after a long period of time. His ability to recall events was affected by the passage of time and by his discussions with others. I find his evidence as to his observations of a struggle between Leon Alexander and Andy James to be reliable. I find however that some part of the struggle was not visible to him because a car blocked his view. I do not find his account of the ending of the fight to be reliable in light of the fact that he did not see anyone matching the description of Kenrick Williams pull Mr. Alexander away and in light of the fact that the words that he reported were not heard by Mr. Williams or by Ms. Harewood.

Lois Harewood

[397] Ms. Harewood was not close friends with any of the men charged nor was she close friends with either of the deceased. She was not intoxicated. She was standing close to the altercation in the parking lot between Andy James and Leon Alexander. Ms. Harewood made a mistake about the presence of Anski Julien pulling Mr. Alexander from the fight and agreed that she likely made that assumption because she had seen Mr. Julien pulling Mr. Alexander minutes before. Ms. Harewood was a credible witness. Her evidence was consistent and plausible. She was in a position to observe the fight and her observations are reliable. When she was unable to see certain details, she admitted that she could not do so. She was unable to identify the people pulling the two men apart. She conceded that she could not watch the hands of each of the men throughout the fight.

[398] Ms. Harewood’s evidence that she saw Andy James walk between two cars before the fight started is supported by the evidence of Ryan Noel that he saw the two men behind a car at the start of the fight, by Michelle Phillip’s evidence that they were ‘on the windscreen’ and by the physical evidence of blood very close to a car in the area described by Ms. Harewood, northeast of the shed. More blood was found southwest of the car where Andy James would have been standing after he was pulled back and stepped back after the confrontation as described by Lois Harewood.

[399] I find Ms. Harewood to be a credible and reliable witness.

Leon Alexander

Inconsistencies

[400] There are inconsistencies between Leon Alexander’s evidence at trial and his statement to the police.

[401] In his statement to the police Mr. Alexander said that he saw Edwin Modeste, Edmund Benjamin, Copper and Kimron Bengy in the fight with Brandon Ramdeen. In his examination in chief at trial he testified that he saw Edwin before the fight and around the fight; he saw Kimron Bengy and Copper stand next to Edwin before the fight and he saw Kimron Bengy in the fight; he saw Edmund Benjamin running away after the fight. In cross-examination he testified that he did not see anyone actually in the fight but saw Edwin, Kimron Bengy and Copper before the fight and Edmund Benjamin running after the fight. He explained that he misunderstood that question of the police officer and thought that the officer was asking who was around the fight. I do not find that this inconsistency is significant as Mr. Alexander has provided a reasonable explanation for the difference in his statement to the police and his evidence.

[402] The other very problematic area of Mr. Alexander’s evidence was his description of the manner in which Andy James grabbed him as he left the boat. He testified in the trial that Andy James grabbed his upper arm or bicep and demonstrated a grab in that area. He went on to say that his elbow length T-shirt was pushed up and there was skin to skin contact. This is completely inconsistent with his statement to the police that he was grabbed in the shoulder area. He is seen to demonstrate a grab on the shoulder in the DVD of the statement to the police. I reject Mr. Alexander’s evidence as to being grabbed on his arm and his t-shirt being pushed up in the process.

[403] Mr. Alexander’s evidence is obviously inconsistent with that of the witnesses who testified that they saw him in physical contact with Andy James in the parking lot after the cruise. Mr. Alexander has testified that he was very angry when he confronted Mr. James. He could not remember if he said anything as he confronted Mr. James. There is reliable and credible evidence that there was physical contact or ‘scuffling’ between the two men.

[404] Mr. Alexander’s evidence that he moved away from Kenrick Williams to another part of the parking lot after he was carried by Kenrick Williams away from the fight is not consistent with Mr. Williams evidence that Mr. Alexander stayed in the same area and was confronted by Dexter Regis. However, it is consistent with the evidence of Anna George who testified that she had a confrontation with Mr. Alexander.

[405] As with any witness, I may accept some all or none of the evidence of Mr. Alexander. I reject his evidence that he was grabbed on his bare arm by Andy James and I reject his evidence that he had no physical contact with Andy James in the parking lot. As set out in R. v. W.(D.)[^9], even if I reject the evidence of Mr. Alexander, in whole or in part, I must consider whether it raises a reasonable doubt as to his guilt. I will consider the impact of my rejection of these parts of his evidence further when I address my analysis and findings on the offences.

Kimron Bengy

[406] Kimron Bengy gave several different versions of events. His involvement in the fight and responsibility for the stabbing of Brandon Ramdeen diminished with each rendition.

[407] Kimron Bengy’s original two statements to the police are the most reliable of the statements. Those two statements are not wholly truthful. Mr. Bengy denies deliberately stabbing Mr. Ramdeen and claims a combination of self-defence and accident. His story is in this respect implausible when considered in the context of all of the evidence particularly the pathologist’s evidence as to the number and location of the wounds. However, the statements have some probative value. As with the evidence of Mr. Alexander, I will address the effect of the evidence of Mr. Bengy’s statements on the outcome of the case when I make my overall findings on each charge.

[408] With those observations about the credibility and reliability of the witnesses I will move to my findings on the counts in the indictment.

Part IV- Analysis and Findings

Count 1 – Second degree murder of Andy James

Liability as a Principal

[409] Section 222 (1) of the Criminal Code, R.S.C. 1985, c-46 provides that “[a] person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Section 222 (5) provides that “[a] person commits culpable homicide when he causes the death of a human being (a) by means of an unlawful act”.

[410] The underlying unlawful acts must be objectively dangerous and there must be objective foreseeablity of the risk of bodily harm that is neither trivial nor transitory.[^10]

[411] Section 229 provides that “Culpable homicide is murder where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

[412] In order to find Mr. Alexander guilty of murder or manslaughter as a principal in the unlawful killing of Andy James I must be satisfied beyond a reasonable doubt that the unlawful and dangerous acts of Leon Alexander caused the death of Andy James.

[413] The test for legal causation was articulated by the Supreme Court of Canada in R. v. Nette[^11] and Smithers v. The Queen.[^12] It was more recently explained in R. v. Maybin[^13]. The question to be determined, as reaffirmed in Maybin, is, “Were the unlawful acts of the [accused] a significant contributing cause of death?”

[414] I am satisfied that Mr. Alexander committed an unlawful act by assaulting Andy James in the parking lot.

[415] Mr. Alexander was clearly angry and aggressive towards Andy James. I find that in his anger he physically assaulted Andy James in the parking lot before he was pulled away by Kenrick Williams. This is consistent with the evidence of Lois Harewood, Kenrick Williams and Ryan Noel. Mr. Alexander did not believe that he had connected with Mr. James, but even he conceded that he might have ‘swung at him’. Mr. Alexander also conceded that he was very angry and that he could not remember what he might have said to Mr. James in the confrontation. As a result, I find that Mr. Alexander had physical contact with Andy James in the parking lot. The evidence of Melanie Richard, the DNA expert while not conclusive on the issue, also supports my finding that there was a fight and close physical contact between Mr. Alexander and Andy James in the parking lot. Ms. Richard’s evidence was that the DNA of Mr. Alexander would be unlikely to be deposited under the fingernails of Mr. James from a brief touching.

[416] While I find that Leon Alexander fought with Andy James and had physical contact with Mr. James during that fight, I do not find that he stabbed Andy James. I do not find that the assault was in itself dangerous or that the risk of non-trivial harm was objectively foreseeable.

[417] I will briefly set out my analysis of the evidence that causes me to reach this conclusion.

[418] Kenrick Williams testified that he pulled Mr. Alexander from the fight and that Mr. Alexander had no weapon in his hands. Mr. Williams did not see any weapon drop to the ground. I found Mr. Williams to be unreliable in his observations in poor lighting and from a distance but I found his observations in close proximity to events to be reliable. Mr. Williams was not drinking that night and his recollection was unaffected by alcohol. He was a credible witness.

[419] I accept Ms. George’s evidence that she saw Edwin Modeste and a third short dark man run after Mr. Alexander in the direction of Mr. James moments before the confrontation. The third man was around 5’6”. Kimron Bengy was 5’7” tall. This evidence is consistent with Mr. Bengy being present at the fight between Mr. Alexander and Mr. James.

[420] I accept Lois Harewood’s evidence that she saw an unidentified man pulling Andy James by the shoulder. I find that the stabbing of Andy James occurred when Mr. James was pulled from the fight. The superficial injuries to the back of Mr. James and the increasingly serious injuries to the right side of his body are consistent with the stabbing occurring as he was pulled from the fight from behind and as he turned towards his attacker. Ms. Harewood saw Mr. James pulled from the fight at the same time that Leon Alexander was pulled from the fight. Just prior to this Ms. Harewood saw Mr. James and Mr. Alexander ‘scuffling.’ Mr. Noel saw Mr. Alexander grab Mr. James.

[421] Mr. Bengy admitted to the police and in his evidence at the preliminary inquiry that he was carrying a knife the night of these offences. The evidence supports the conclusion that he used that knife against Brandon Ramdeen moments after the fight involving Andy James. In all of the circumstances the evidence pointing to Kimron Bengy as the person who stabbed Andy James raises a reasonable doubt as to Mr. Alexander’s responsibility for the actual stabbing of Mr. James.

[422] I have also considered the evidence of Leon Alexander. While I find that Mr. Alexander’s evidence was not reliable with respect to his precise actions and words in the assault on Andy James I accept his evidence that he did not have a knife and that he did not stab Mr. James.

[423] In considering the issue of causation, my conclusion that Mr. Alexander did not stab Mr. James does not wholly answer the question of whether Mr. Alexander’s unlawful acts were a significant contributing cause of the death of Andy James.

[424] As articulated by the Supreme Court in Maybin, to determine whether Mr. Alexander factually caused the death of Mr. James, I must determine whether ‘but for’ the actions of Mr. Alexander, Mr. James would not have died. It is argued that, in the circumstances of this case, the actions of Mr. Alexander, while not causing any direct harm to Mr. James, rendered him vulnerable to the attack by the person who stabbed him.

[425] I am not satisfied that ‘but for’ the actions of Mr. Alexander, Mr. James would not have been stabbed. Unlike Maybin, the assault by Mr. Alexander caused no injury nor was non-trivial harm foreseeable from the assault.

[426] Even if I am mistaken in my conclusion on factual causation, I would not be satisfied that the assault by Mr. Alexander met the test of legal causation. Legal causation requires that the general nature of the intervening act and the risk of the ensuing harm to Mr. James be reasonably foreseeable. As in Maybin, it may be reasonably foreseeable that a fight would escalate and others become involved, but it was not, in the circumstances of this case, reasonably foreseeable that someone would stab Mr. James. On all of the evidence, Mr. Alexander had reason to believe that both Mr. James’s friends and his own friends would intervene not to escalate but to separate the fight.

[427] Finally, I have considered the testimony of Mr. Alexander as to his knowledge of the stabbing. I accept his evidence that he did not know that anyone had a knife or that anyone was likely to stab Mr. James. His intention was to hit Mr. James. This was an unlawful act but it falls short, in these circumstances, of being a significant contributing cause of the death of Mr. James.

[428] Based on these findings, I have concluded that it has not been proven beyond a reasonable doubt that Mr. Alexander caused the death of Mr. James, as a principal, by an unlawful act.

Liability as a Co-principal or Party

[429] Section 21 of the Criminal Code provides as follows:

(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[430] The Crown relies not only on the theory that Mr. Alexander wielded the knife that killed Andy James, but also on the theory that Mr. Alexander acted jointly with another person to kill Mr. James, making him liable as a co-principal or that he aided another person, making him liable as a party under section 21(1)(b). The further alternative theory of the Crown is that Mr. Alexander was engaged with another person in the common unlawful purpose of assaulting Mr. James and that other person committed the offence of murder, making Mr. Alexander liable as a party under s. 21(2).

[431] Mr. Alexander has denied acting jointly with any other person. His denial is consistent with the evidence that he was running away from Edwin Modeste and the third man when he rushed past Anna George. He was acting, as I have found, in anger and impulsively and not in concert with anyone. There is no evidence that he spoke with Kimron Bengy or any other person in advance of rushing towards Andy James. I am not satisfied that Mr. Alexander acted jointly with anyone to cause the death of Mr. James for the reasons I have already stated in my discussion of causation. I am also not satisfied that Mr. Alexander acted jointly with anyone to assault Mr. James. I appreciate that a common unlawful purpose need not be formed in advance nor does it need to be a detailed or sophisticated plan or purpose. I appreciate that a common unlawful purpose may be inferred by the actions of two or more persons in pursuing the purpose. In this case however, the facts do not support such an inference. The purpose of Mr. Alexander was to hit Mr. James and not to cause him serious harm. I accept his evidence in this regard.

[432] In light of my finding as to Mr. Alexander’s actions and his purpose, I am not satisfied that the Crown has proven liability as a co-principal or as a party under subsections 21(1)(a) or 21(2). There was no joint action.

[433] With respect to liability under subsections 21(1)(b) or (c) I find that while the actions of Mr. Alexander had the effect of assisting another person to stab Mr. James, Mr. Alexander did not know that the other person intended to stab Mr. James and he did not intend to assist or encourage him in stabbing Mr. James. The Crown has not proven liability under subsections 21(1)(b) or 21(1)(c).

Count 2 -Manslaughter of Brandon Ramdeen

[434] Leon Alexander and Edmund Benjamin are both charged with the manslaughter of Brandon Ramdeen. As set out above, the Crown theory of liability is that both men participated in beating Brandon Ramdeen. In the course of the beating, Mr. Ramdeen was stabbed by Kimron Bengy and died as a result of the two fatal stab wounds.

[435] The Crown position is that while Leon Alexander and Edmund Benjamin did not stab Mr. Ramdeen, they should be found guilty as parties to the killing because either they aided or abetted Mr. Bengy or because they were engaged in a common unlawful purpose of assaulting Mr. Ramdeen in circumstances where it was foreseeable that one of the participants would cause harm to Mr. Ramdeen that was more than transitory or trivial.

[436] Alternatively, the Crown submits that even if they were not engaged in a common unlawful purpose with Mr. Bengy, they engaged in a fight in a crowded area and in circumstances where the risk of someone intervening and stabbing Mr. Ramdeen was foreseeable. Therefore the dangerous unlawful act of assaulting Mr. Ramdeen was a significant contributing cause of the death of Mr. Ramdeen, making each of the participants guilty of manslaughter under section 222(5)(a).

[437] On any of these theories, the Crown must prove beyond a reasonable doubt that the accused participated in the assault on Mr. Ramdeen or that he aided or abetted the assault.

[438] Mr. Alexander and Mr. Benjamin both argue that the Crown has not proven that they participated in the assault or that they aided or abetted the assault.

[439] Mr. Alexander and Mr. Benjamin have also argued that I should find that Mr. Ramdeen was stabbed by Kimron Bengy before the fight with Edwin Modeste and that therefore any assault played no role in his death. I do not accept this latter submission. The stabbing and assault, whether occurring simultaneously or seriatim, were part of a continuing transaction. If the accused participated in the assault as principals or as aiders or abettors in circumstances where the general nature of the act of Mr. Bengy was objectively foreseeable, each would be guilty of manslaughter.

[440] The issue to be determined therefore is whether the Crown has proven that Mr. Alexander or Mr. Benjamin participated in the assault as a principal or as a party.

[441] I am able to make the following findings of fact concerning the fight with Brandon Ramdeen:

• I find that Dexter Regis, Collins George, Brandon Ramdeen and a number of other men went through the parking lot to confront Edwin Modeste, believing him to be responsible for the stabbing of Andy James. The three men were angry. Dexter Regis was in the front of the group with a baseball bat, Collins George was close behind him and Brandon Ramdeen was behind Collins George. While I do not accept all of the evidence of Mr. Regis and Mr. George, I accept the evidence of Collins George and Dexter Regis as to their purpose in going through the parking lot and their anger.

• Holford Lewis and Kimron Bengy both spoke of Edwin Modeste ‘pulling’ Leon Alexander before the fight. Kenrick Williams had no recollection of Edwin Modeste coming by when he was with Leon Alexander. Leon Alexander testified that Edwin Modeste came by and tried to pull him away but he said the he and ‘Bob’ were fine. I accept the evidence of Leon Alexander as to the interaction with Edwin Modeste. I find that Mr. Lewis saw only a portion of the interaction as did Kimron Bengy. Mr. Bengy said that he lost track of Leon Alexander. I find that Mr. Lewis must also have lost track of Mr. Alexander but assumed that Mr. Alexander was with Edwin Modeste.

• Mr. Alexander, before the fight began, walked past Edwin Modeste who was near a car in the area where the fight would occur. After passing Edwin Modeste and moving further southwest in the parking lot Mr. Alexander encountered Anna George and had the confrontation that he described and that was described by Ms. George and Michelle Phillip. While I do not find that Ms. Phillip broke up the confrontation between Mr. Alexander and Ms. George, I accept that she saw the encounter as she was walking to her car to wait for husband.

• I accept that Leon Alexander had moved away from Kenrick Williams before the fight began based on the testimony of Leon Alexander and the confirmatory evidence of Anna George and Michelle Phillip.

• Dexter Regis confronted Mr. Modeste. At the time of the confrontation he held the bat in a menacing manner as if to swing it. This is what was observed by Kenrick Williams although he identified the man being confronted as Leon Alexander. Mr. Williams was mistaken about who Mr. Regis was confronting but not about the confrontation. He believed that it was Leon Alexander because Mr. Alexander had just walked in the general direction of Edwin Modeste. In reaching this conclusion I rely on Leon Alexander’s evidence that he walked past Mr. Modeste, but kept going.

• I find that after Mr. Regis confronted Mr. Modeste, Mr. Bengy entered the altercation. As described by Dexter Regis and by Kenrick Williams, Mr. Bengy was the man who tried to grab the bat from Dexter Regis.

• Mr. Bengy was not successful in grabbing the bat and continued to move behind Mr. Regis and behind Mr. George. He moved to Brandon Ramdeen. I find that at this point Mr. Bengy used his knife to stab, or, at least, to attempt to stab, Brandon Ramdeen. As a result of Mr. Bengy’s attack upon him, Brandon Ramdeen lunged forward to where Mr. Modeste and Mr. Bengy were standing. Copper may also have been present. A fight ensued on the hood of the car and then on ground.

• I do not accept that this was a five-on-one beating as described by Dexter Regis and Collins George. The injuries to Mr. Ramdeen are not consistent with repeated kicks and punches to his upper body as described by those witnesses. His injuries are consistent with being fatally stabbed, engaging in a brief scuffle and falling facedown to the pavement. The injuries to the back of his head are consistent with him falling back onto the hood of the car with Edwin Modeste during the fight, or with being rolled over on the pavement after he fell, or both.

• The fight was very short, a matter of seconds. Brandon Ramdeen was fatally stabbed either just before the fight began or just after he lunged forward. As Brandon Ramdeen and Edwin Modeste struggled others became involved – some as aggressors and some to try to break up the fight.

[442] The issue that I must determine in deciding whether the offence of manslaughter has been proven against either Mr. Alexander or Mr. Benjamin is whether it has been proven beyond a reasonable doubt that either Mr. Alexander or Mr. Benjamin participated as an aggressor, either striking Mr. Ramdeen or assisting or encouraging someone else to do so.

[443] In considering this issue I recognize that mere presence is not necessarily enough to prove that a person is a party, but that in some cases, presence can constitute assistance or encouragement. I will now turn to each of the two accused separately and review the evidence and my findings with respect to each of them.

Edmund Benjamin

[444] I infer that Mr. Benjamin was in the area of the assault and stabbing of Brandon Ramdeen. I infer this from the following evidence:

• The physical evidence of Mr. Benjamin’s pendant and beads found in the area where there was a concentration of blood which I infer was the blood of Brandon Ramdeen;

• The evidence that Mr. Benjamin left in Mr. Alexander’s girlfriend’s car with Anski Julien and Kimron Bengy very soon after Mr. Ramdeen fell to the ground;

• The evidence of Kenrick Williams that he saw Mr. Benjamin in the area around Mr. Ramdeen when everyone stepped back from the fight;

• The evidence that Mr. Benjamin was seen running from the area of the fight.

[445] While I am satisfied that Mr. Benjamin was near the fight, the more difficult question is whether the Crown has proven beyond a reasonable doubt participation beyond mere presence.

[446] There were 4 witnesses who testified that they saw Mr. Benjamin strike Brandon Ramdeen. Two of those witnesses were Dexter Regis and Collins George. I have already outlined the problems with the credibility and reliability of these two witnesses. I find that Mr. Regis and Mr. George lied to hide their own involvement in the fight. I do not believe that they were mere spectators standing back and passively observing the fight. I find that the fight occurred quickly after Mr. Regis confronted Mr. Modeste and as described by Kimron Bengy. While Mr. Regis and Mr. George may have retreated from the fight and abandoned their initial purpose, it is not plausible that they were separate from and uninvolved in its commencement. I find that Mr. Regis and Mr. George were part of a group that was looking for vengeance and blamed the ‘Greenz Connection’ group for the stabbing of their friend Andy James. I cannot rely on their evidence of the involvement of Edmund Benjamin or Leon Alexander except insofar as it is confirmed by other witnesses or physical evidence.

[447] Eric Mitchell testified that he saw Edmund Benjamin, Anski Julien and Edwin Modeste fighting the man on the ground. He said that he saw Edmund Benjamin kicking and punching Brandon Ramdeen. He saw Kimron Bengy in the area of the fight, behind Mr. Benjamin. Mr. Mitchell did not see Leon Alexander.

[448] For the reasons I have already outlined, I found Mr. Mitchell to be an unreliable witness with respect to the details of the Brandon Ramdeen fight. He was a great distance from the fight. While he may have recognized people in the area of the fight, he would have been unlikely to have been able to see what he claims to have seen. He appeared to have been influenced by what he had heard and assumed about the incident.

[449] Dixon Henry identified Edmund Benjamin as the man standing over Brandon Ramdeen at the end of the fight, jumping back with something in his hand and saying “I told you guys not to fuck with me”. Dexter Regis saw a short dark man stand over Mr. Ramdeen with a knife in his hand and say “what now?” Holford Lewis testified that after Brandon Ramdeen had fallen and he and others were trying to assist him, a short dark guy who had been in the fight with Edwin Modeste and Leon Alexander, came and stomped his foot near Mr. Ramdeen saying “you little pussyhole- look what you caused.” Michelle Phillip noticed a short dark guy stomping very hard at a time that she believed the fight to be ongoing. I have considered the evidence of these witnesses as to the identity and actions of the person who stood over Brandon Ramdeen after the fight or at the end of the fight. From the totality of this evidence I infer that Kimron Bengy was the man who stood over Mr. Ramdeen and made disparaging comments. He was the man with the knife in his hand. Mr. Henry was mistaken when he identified Mr. Benjamin as the man who had acted in this way at the end of the fight. Mr. Henry had known of Mr. Benjamin because of Mr. Benjamin’s work as a DJ, but Mr. Henry was not closely acquainted with him. Mr. Henry’s consumption of alcohol also weakens his identification. When I consider the evidence as a whole I find that the person standing over Mr. Ramdeen and holding something was not Mr. Benjamin, but Kimron Bengy.

[450] As I previously found, Kenrick Williams was a truthful witness. His ability to identify individuals at a distance was compromised but he was reliable on more general matters.

[451] I have considered the evidence that Edmund Benjamin fled the parking lot immediately after Brandon Ramdeen fell to the ground. He did not wait for Leon Alexander, whose girlfriend owned the car. I have also considered the fact that many people left the parking lot that night after the stabbing for a variety of reasons. Lois Harewood left so that her car would not be trapped in the parking lot. Others left for the same reason. Some left because they did not want to be involved with a police investigation. Dexter Regis left and took the baseball bat that he had been carrying. In all of the circumstances I cannot draw an inference of guilt from the flight of Mr. Benjamin as I cannot reject the many other explanations for leaving, as illustrated by the conduct of many of the Crown witnesses in this case. The evidence of flight is of little probative value.

[452] I have carefully considered all of the evidence in this case. In light of the presence of Mr. Benjamin’s pendant, I have no difficulty in finding that Mr. Benjamin was in the area of the fight at least at its conclusion. However, I cannot conclude that he was involved in the fight in light of the frailties of the identification evidence.

[453] I am not satisfied beyond a reasonable doubt that Mr. Benjamin assaulted Mr. Ramdeen or was a party to an assault on Mr. Ramdeen. In light of this finding I need not consider the further question of whether Mr. Bengy’s act of stabbing Mr. Ramdeen was reasonably foreseeable to the men who were involved in the fight.

[454] I will now move to the evidence in relation to Leon Alexander.

Leon Alexander

[455] Michelle Phillip testified that she saw Leon Alexander in the fight but in cross-examination agreed that she could be mistaken. She agreed that she may have assumed that he was involved because of his aggressive behaviour earlier.

[456] Kenrick Williams believed that he saw Leon Alexander confronted by Dexter Regis with the bat. This is contradicted by both Dexter Regis and Leon Alexander.

[457] Dixon Henry saw Leon Alexander in the area near the fight, after the fight had ended. Mr. Henry was mistaken about Leon Alexander leaving with Dallo. He may well have seen Mr. Alexander talking to Dallo as described by Mr. Alexander. He was mistaken in his evidence that Edwin Modeste left with Anski Julien and Edmund Benjamin. Mr. Henry knew Leon Alexander ‘to say hi’, but did not know him well.

[458] Other than Dexter Regis and Collins George, whose evidence I do not accept for the reasons I have already stated, there was one other witnesses who placed Leon Alexander in the fight ‑ Holford Lewis.

[459] Mr. Holford Lewis’s testimony was that Leon Alexander and Edwin Modeste began the fight by ‘rushing’ Mr. Ramdeen. I do not find that the fight started as described by Mr. Lewis. As I have already said, I find that Mr. Bengy rushed Mr. Ramdeen with Edwin Modeste nearby and that this started the fight. Mr. Lewis had watched Mr. Alexander with Edwin Modeste earlier and had assumed that Mr. Alexander was with Mr. Modeste. Mr. Lewis recognized Leon Alexander as someone he had seen at the Spice Isle Bar. However, he did not know Mr. Alexander well and the conditions in the parking lot made identification difficult.

[460] I have considered the evidence that Mr. Alexander fled the parking lot and for the same reasons that I found the evidence of flight of little probative value with respect to Edmund Benjamin’s culpability I similarly find the evidence of Mr. Alexander’s flight to be of little probative value.

[461] Considering the evidence as a whole, including the evidence of Anna George as to her encounter with Leon Alexander after the stabbing of Andy James and the testimony of Leon Alexander, I accept the evidence of Mr. Alexander that he had moved past Edwin Modeste prior to the start of the fight. He had the confrontation that he and Ms. George explained and he was beginning to move back towards the area of the fight when it began. He moved closer to the fight as it ended and he spoke with Dallo.

[462] I accept the evidence of Leon Alexander that he was not involved in the fight with Brandon Ramdeen. While, as I have indicated, there were aspects of Mr. Alexander’s evidence that I rejected, I found his evidence overall to be internally consistent and plausible. He admitted that he might have swung at Andy James although he denied hitting him. His account of being grabbed by the arm was not credible, but Mr. Alexander like other witnesses was influenced by a conscious or unconscious attempt to explain an aspect of the evidence. The rejection of this part of his evidence does not cause me to reject his evidence as a whole. His evidence of his movements before the fight and as it was ending are credible. I find that Mr. Alexander, as he moved closer to the fight, was observed in the general area of the fight, but I am not satisfied beyond a reasonable doubt that he was a participant.

[463] Because I am not satisfied beyond a reasonable doubt that Mr. Alexander participated in the fight, I must find him not guilty. I need not go on to consider whether the act of Mr. Bengy in stabbing Mr. Ramdeen was reasonably foreseeable.

conclusion

[464] For these reasons I am not satisfied beyond a reasonable doubt of the guilt of Mr. Alexander on count 1 of the murder of Andy James and I find him not guilty. I am not satisfied of the guilt of Mr. Alexander on count 2 of the manslaughter of Brandon Ramdeen and I also find him not guilty of that count. I am not satisfied of the guilt of Edmund Benjamin on count 2 and I find him not guilty.

Forestell J.

Released: December 12, 2012