ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-181

DATE: 20130826

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LEONARD NIEBERG

Appellant

K. Hull, for the Crown

M. Halfyard, for the Appellant

HEARD: July 8, 2013

On appeal from the Judgment of The Honourable Mr. Justice R. Harris dated
January 29, 2010

HEALEY J.

Nature of the Appeal

[1] The appellant Mr. Nieberg appeals against conviction on two counts of assault and one count of mischief under $5,000. The trial proceeded by judge alone.

[2] The appellant argues that the judge rendered an unreasonable verdict for two reasons. First, he states that the trial judge failed to account for and resolve material inconsistencies in the evidence of the three Crown witnesses as it related to crucial aspects of their testimony, whereas such inconsistencies should have raised a reasonable doubt about the appellant's guilt.

[3] Second, the appellant argues that the trial judge failed to properly and adequately consider a Vetrovec warning in relation to the evidence of the complainant, Lee Bailey.

Standard of Review

[4] Where the conviction has rested upon the trial judge's assessment of witnesses' credibility, great deference must be shown to his or her judgment given that the trial judge has had the advantage of seeing and hearing the witnesses' evidence: R. v. W. H., 2013 SCC 22 at para. 30; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131.

[5] The test for determining the unreasonableness of a verdict based upon a credibility assessment was articulated by Sopinka J. in R. v. Burke 1996 229 (SCC), [1996] 1 S. C. R. 474, at para. 7, being that the trial court's assessment of credibility is unreasonable if it cannot be supported on any reasonable view of the evidence.

Addressing Contradictory Evidence on Material Points

[6] It was argued by defence counsel that the trial judge applied a different standard of scrutiny to that of the evidence of the Crown witnesses, as compared to that of Mr. Nieberg, who was the only witness to testify for the defence. In this mindset he overlooked his duty to reconcile the inconsistencies in the evidence of the Crown's witnesses on material points, according to the appellant.

[7] In particular, Mr. Halfyard attempted to illustrate his point by referring to the reasons of the trial judge where he refers to Winifred Bailey as being "feisty", whereas Mr. Halfyard suggests that her manner on cross-examination was evasive and partisan. Having reviewed her cross-examination transcript, it becomes apparent why the trial judge notes in his reasons that "there were times when it appeared she had enough of Mr. Syme’s questions and found them repetitive…". I would also characterize her as a witness who at all times wanted to "cut to the chase", as the transcript reads as though she had no patience for giving careful consideration to questions that she considered to be inconsequential. This is different from the witness who seeks to avoid answering a question because the answer would be damaging.

[8] The trial judge spends time in his reasons considering the demeanor of each of the four witnesses, and gave logical and understandable explanations for why he found their testimony to be believable or not believable. He dealt with the issue of credibility in an even-handed and thorough way, discussing each witness in turn and articulating his observations and impressions of each. He was fair in his approach to the appellant's evidence, describing him as "likable but not the least bit believable as to the main events of the matter". Following that statement, Harris J. spent considerable time explaining his reasons for drawing such a conclusion.

[9] As a starting point, I reject the appellant's contention that a more lenient standard of scrutiny was applied to the witnesses testifying for the Crown. The appellant has not, as required, pointed to something in the reasons of the trial judge or elsewhere in the record that has made it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant or the other Crown witnesses: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at paras. 58-59. The test is a rigorous one, as pointed out by Blair, J.A. in R. v. T. T., 2009 ONCA 613 at para. 32, and the evidence and reasons of the trial judge do not support such a conclusion.

[10] The related issue is whether the trial judge otherwise reached an unreasonable verdict because of the failure to resolve inconsistencies in the version of events relayed by each of Lee Bailey, Winifred Bailey and John Madansky.

[11] The law is that trial judges have a duty to address contradictory evidence on key or material points within the testimony of a single witness: R. v. A.S. (2004), 2004 39012 (ON CA), 192 O.A.C. 85 (C.A.) at para. 13; R. v. Gabris, 2007 ONCA 437 at para. 10. Where a court is faced with contradictory evidence given by different witnesses, it appears that the credibility and reliability of the complainant's evidence must be tested in light of all of the other evidence presented: R. v. R.W.B. (1993), 24 B.C.A.C. 1 (C.A.), cited with approval by Finlayson, J.A. in R. v. Gostick (1999), 1999 3125 (ON CA), 121 O.A.C. 355 (C.A.) at para. 15. In that same passage, Finlayson J.A. stated that it is particularly the case where credibility and reliability are the principal issues that the court must consider all of the evidence together and not assess individual items in isolation. While that exercise may not require the trial judge to reconcile every difference in the versions provided by each witness, it seems to me that it does require that he or she consider whether the burden of proof has been met where there are significant differences in the version of events relayed by the Crown's witnesses.

[12] In this case the trial judge gave lengthy and detailed reasons for rejecting the evidence of the appellant, which were all reasonable findings available to him as the trier of fact.

[13] With respect to the initiating incident in the driveway, Harris J. rejected the appellant's evidence that the complainant's injuries were caused by her falling down on her face. He specifically accepted the complainant's evidence that her injuries arose from being punched in the face by the appellant. The appellant argues that the complainant's mother, Winifred Bailey, described a different version of events, she having testified that the appellant pushed her daughter from behind. A review of Winifred Bailey's evidence reveals that she had a recollection of events that was focused primarily on seeing her daughter on the ground and bleeding. With respect to how she got there, Winifred Bailey's evidence was that she was looking at her daughter when the appellant approached the complainant from behind. She testified:

A: I saw her and the next I saw her she was on the floor bleeding.

Q: What did you see first? Did you see her on the floor or did you see her get pushed?

A: I just saw her going on the floor.

Q: Did you see her get pushed or not?

A: She was pushed or hit or something.

[14] Given this answer and the totality of the evidence given by Winifred Bailey, it was reasonable for the trial judge to conclude that she was generally reliable. He stated that she had seen her daughter "attacked and propelled to the ground by application of a fisted hand". The latter remark, "fisted hand", is not accurate in terms of Winifred Bailey's testimony, but the trial judge goes on to state "it appears from her description as if she could not say whether the fisted hand pushed or hit or somethinged her daughter to the ground".

[15] The appellant argues that the trial judge accepted both versions by believing the testimony of both Lee and Winifred, meaning that he did not attempt to explain their inconsistencies. It is not clear to what extent he accepted the fullness of Winifred’s testimony, but clear that he accepted sufficient aspects of Winifred's testimony to conclude, as was reasonable on the evidence, that there was a physical application of force by the appellant toward her daughter, and that he made threats that he was going to kill the complainant during the same altercation.

[16] There was no error in the conclusions regarding credibility drawn by the trial judge, and the verdict reached is supported by the evidence.

[17] The second assault conviction relates to an assault on Winifred Bailey inside the house. The only witness to this incident was John Madansky. The appellant again argues that the trial judge accepted diametrically opposed versions of this assault, and having failed to consider the importance of those inconsistencies, rendered an unreasonable verdict.

[18] Winifred Bailey testified that the appellant threw her up against a wall in the living room, causing her to strike her shoulder with force, after breaking her cane in half. John Madansky testified that he came into the dining room to see that the appellant had pinned Winifred up against the wall, leaning on her with all his weight and with his arm against her throat. After releasing her, the appellant broke her cane.

[19] Winifred Bailey was 80 years old at the time of this attack. John Madansky described that after her cane was broken, she went to sit down on the couch, and that she was "pretty shaken". He offered that she was more traumatized then physically hurt. Winifred testified that she was traumatized, having nightmares afterwards and having gone to see her doctor in relation to this event. After seeing her daughter assaulted and bleeding, she described that she was a “nervous wreck".

[20] John Madansky was observed by the trial judge to be "articulate, intelligent, and in my view, a straightforward articulate purporter of events, generally". It is important that John Madansky entered the room after the attack was in play, and therefore may not have seen the initial event described by Winifred. That they each referred to the attack as having occurred in different rooms is not important because Winifred Bailey stated from the outset that there were two living rooms, and that the assault occurred in what she believed to be one of those living rooms.

[21] Given the state of Winifred Bailey both before and after the attack described by John Madansky, and given the trial judges’ assessment of him as a reliable witness, it was open to Harris J. to accept that Winifred was thrown against the wall with force. It was also open to him to accept that the attack involved being pinned by her throat, as observed by Mr. Madansky, even if Winifred herself did not have that recollection of the attack. For the same reasons, it was reasonable for the trial judge to accept that her cane was broken at the end, rather than the beginning, of the attack. Again, the trial judge may have overstated matters in concluding that Winifred had an "excellent clear recollection of the events" given these differing versions, but it was not unreasonable for him to conclude that she was "an honest witness doing her best to tell the truth to the best of her ability and she was generally reliable". What is important is that the trial judge was convinced, beyond a reasonable doubt, and based upon the totality of the evidence that he took into consideration, that the appellant had applied unwanted force to Winifred Bailey and that he had intentionally snapped her cane in half, rejecting the appellant's improbable explanation that it snapped from metal fatigue after he accidentally stepped on it and attempted to straighten it.

[22] Finally, the appellant argues that the trial judge failed to address material problems in the evidence of Lee Bailey. Under cross-examination on the topic of her assertion that the appellant had asked her to go out to buy prescription pills from an acquaintance, she stated "I know, it doesn't make sense". This remark was made in acknowledgment of her admission that the appellant had been complaining about her abuse of such medication, as well as alcohol, in the days leading up to the date of the assault. I agree with the submission of the Crown that, read in context, her remark is not a reference to the reliability of her own testimony, but refers to the appellant's state of mind in asking her to pick up the pills given his earlier objections. Additionally, this is not a material point in the evidence.

Vetrovec Warning

[23] The second ground advanced by the appellant is that Harris J. applied and inadequate Vetrovec caution when considering the evidence of Lee Bailey.

[24] The appellant argues that the trial judge did not look for corroboration for her evidence, which he suggests is required when faced with a witness with a disreputable history, but instead relied on her demeanor and apparent clarity of memory.

[25] In a review of the law concerning the treatment of accomplices’ testimony in the assessment of guilt, Dickson J. writing for the court in R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811 at p. 831 set out the proper practice to be followed by the trial court:

I would only like to add one or two observations concerning the proper practice to be followed in the trial court where as a matter of common sense something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character. There are great advantages to be gained by simplifying the instructions to juries on the question as to when a prudent juror will seek some confirmation of the story of such a witness, before concluding that the story is true and adopting it in the process of finding guilt in the accused as charged. It does not, however, always follow that the presiding justice may always simply turn the jury loose upon the evidence without any assisting analysis as to whether or not a prudent finder of fact can find confirmation somewhere in the mass of evidence of the evidence of a witness. Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expressions such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness' testimony or some important part thereof. I do not wish to be taken as saying that such illustration must be carried to exhaustion. However there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses. All of this applies equally in the case of an accomplice, or a disreputable witness of demonstrated moral lack, as for example the witness with a record of perjury. All this takes one back to the beginning and that is the search for the impossible: a rule which embodies and codifies common sense in the realm of the process of determining guilt or innocence of an accused on the basis of a record which includes evidence from potentially unreliable sources such as an accomplice.

[26] This paragraph makes clear that there is no sharp and clear rule with respect to whether, or how, such a warning is to be undertaken. The caution itself is discretionary. At page 823 Dickson, J. confirms this latter fact:

… Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an ‘accomplice’ no warning is necessary.

[27] In this case the complainant has an admitted history of substance abuse, a criminal record, the admission that she had lied to the appellant about a significant fact during their relationship, and the evidence was that she was under the influence of drugs and alcohol on the date of the assault. All of this was recounted by the trial judge in his reasons for judgment. Nonetheless, he reached the conclusion that the complainant was a reliable historian, a reasonable conclusion given the hallmarks of honesty in her testimony - complimentary comments made about the appellant, attention to detail in her recall, and a presentation as though she was “reliving events", as noted by Harris J. Under these circumstances a Vetrovec warning may not even have been required. Nonetheless, Harris J. did caution himself, as is apparent from page 95 of the transcript of his reasons for judgment. And he was satisfied beyond a reasonable doubt as to the guilt of the appellant on all charges with an abundance of evidence confirming the testimony of Lee Baily - evidence provided by the other two Crown witnesses of the appellant's state of mind, alcohol consumption and demeanor on the date in question, of the attack against her, of her bleeding nose caused by the attack, of her son's reaction to the attack, and of the attack against Winifred Bailey and the breaking of her cane.

[28] Given that the Vetrovec warning is discretionary, that there is no required formula for its application, and that there was confirmatory evidence to which Harris J. did turn his mind, I reject this ground of appeal.

[29] For the foregoing reasons the appeal is dismissed.

HEALEY J.

Released: August 26, 2013