COURT FILE NO.: CR-12-00002345-00
DATE: 2013-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N
Her Majesty The Queen
Michael Morris, for the Crown
Applicant
- and -
Travis Babbington and Nathan Babbington
Julie Bedford, for the Defendant, Travis Babbington
K. Paul Erskine, for the Defendant, Nathan Babbington
Defendants
HEARD: August 12-15, 2013
REASONS FOR JUDGMENT
M. J. Donohue J.
Table of Contents
OVERVIEW.. 3
INTRODUCTION. 3
EVIDENCE. 4
RE ROBBERY #1. 4
RAJIV PAUDWAL. 4
RE ROBBERY #2. 6
TERRY ERCEGOVIC. 6
RE ROBBERY #3. 8
WILLIAM HERNANDEZ. 8
BRYAN HERNANDEZ. 11
ANTHONY SALAZAR. 13
EVIDENCE OF THIRD ACCUSED RE ROBBERIES #1, #2, #3. 14
TYRONE LESS. 14
CROSS-EXAMINATION OF TYRONE LESS. 21
PHOTOGRAPHS OF THE TWO DEFENDANTS. 26
POSITION OF THE CROWN. 27
POSITION OF COUNSEL FOR NATHAN BABBINGTON. 28
POSITION OF COUNSEL FOR TRAVIS BABBINGTON. 30
ANALYSIS. 32
THE INCONSISTENCIES IN THE VICTIMS’ EVIDENCE. 32
THE DIRECT EVIDENCE ON IDENTITY AS PROVIDED BY TYRONE LESS. 34
AIDING & ABETTING ISSUE. 37
CONCLUSION. 39
OVERVIEW
[1] This case involves the assessment of the evidence concerning the identity of the perpetrators of three robberies committed on the same evening.
[2] The two defendants are charged with five counts of robbery and three counts of use of an imitation firearm while attempting to commit an indictable offence.
[3] Travis Babbington was 20 years old and Nathan Babbington was 22 years old at the time of this incident.
[4] The primary Crown witness, Tyrone Less, was 18 years old at the time. He is charged separately with the same offences.
INTRODUCTION
[5] On the night of July 25, 2011, there were three incidents involving robberies in Brampton in less than an hour after midnight. Each involved a victim travelling on foot. The perpetrators drove up in a red vehicle and showed what appeared to be a real gun. On each occasion, one or two of the vehicle’s occupants got out, searched the victim’s pockets and stole several items from their person. The perpetrators then drove off.
EVIDENCE
[6] It was agreed by all, that the driver of the red Pontiac vehicle, at all times, was the Crown witness, Tyrone Less. The vehicle involved was owned by Tyrone Less’ mother.
[7] The defence do not dispute that there were three robberies involving five victims. They do not dispute that there were three men involved in the robberies. They do not dispute that the robberies involved the use of an imitation firearm and the victims did not know it was imitation.
[8] The defence agreed that the five victims in the three robberies gave credible evidence, but apart from some general descriptors of race and clothing, none could positively identify the robbers.
[9] The evidence of the five victims is as follows:
RE ROBBERY #1
RAJIV PAUDWAL
[10] Mr. Paudwal was the first robbery victim. He testified by way of an interpreter in the Punjabi language. He is employed as a fibre technician and had worked the evening of July 24-25, 2011. He was returning home at midnight, walking from the bus stop at Bramalea and Larkspur. He normally walked about 800 or 900 metres to his home.
[11] As he was walking he observed a red car pull up and stop. A passenger got out and opened the trunk and did something at the trunk area. Mr. Paudwal continued walking and passed the car.
[12] A short distance down the street the red car came up and stopped very near to him. The front seat passenger got out and approached him. The man stuck what looked and felt to Mr. Paudwal like a small gun barrel into his right side under his ribs and asked for his money and his wallet. A minute or two later, the driver got out and he too demanded the victim’s money and his wallet. The driver was to his left side and the passenger was to his right side.
[13] He said the passenger that got out was a black man, wearing a whitish or light gray hat, jeans, and a t-shirt. He could not say how tall he was. He described him as an average man and somewhat slim. He cannot recall the colour of the man’s shirt. He does not remember the clothes of the driver who got out but described him as a black man. He did not see into the car.
[14] He was in a state of fear with the gun pointed at him. He agreed the driver used an aggressive tone and made him feel threatened. He gave them his wallet. His wallet had $20, some Indian rupees, a silver coin, his driver’s licence and his health card, as well as some transit tickets.
[15] The money was never returned, but a woman found his wallet with his driver’s licence and health card in it in front of her house the next day. She returned it to him.
RE ROBBERY #2
TERRY ERCEGOVIC
[16] Mr. Ercegovic was the victim of the second robbery that night. He works as a structural steel installer. He was on his way, by bicycle, to a friend’s house. He recalls it was after midnight, around 12:30 a.m. He was headed south on Ocean Ridge Drive.
[17] He saw a red car pass him. At a bend in the street it slowed and made a three-point turn and came back. The car stopped beside him to his left. The driver’s side window was down. He was asked if he had a cigarette. Mr. Ercegovic said no and went to continue. He was told to, “Hold on a second.” The driver exited the vehicle, leaving the door open. Mr. Ercegovic stopped his bike to see what the man wanted.
[18] Under cross-examination he agreed that the driver had pulled in front of him and blocked his way.
[19] The driver lifted his shirt to reveal a gun. He pulled it out and pointed it at Mr. Ercegovic. The victim held up his hands. His cell phone was in his right hand. The driver said to give him the cell phone. Mr. Ercegovic handed it to him. The driver continued to check the victim’s shorts pockets and took $800 in cash, Mr. Ercegovic’s pay. The driver began to check through Mr. Ercegovic’s backpack, but suddenly stopped and took off.
[20] Mr. Ercegovic described the driver as six feet tall, muscular, wearing a red hoodie and gray khaki cargo shorts.
[21] The gun looked like a black “gloc” or nine millimetre. He thought it was real and he was frightened.
[22] Mr. Ercegovic saw movement in the front passenger seat. The man sitting there pulled his cap down in front of his eyes. The cap had a holograph sticker on it. He described him as young, slender, and “African American”. The passenger did not speak.
[23] Mr. Ercegovic did not see anyone else in the car. He thought the car was a two-door car with slightly tinted windows. He thought the make was a Cobalt, a G6 or a Pursuit by Pontiac.
[24] He noticed the licence plate and phoned 911 with that information from his friend’s house.
[25] Mr. Ercegovic never had his phone or money returned to him. He described his phone as a pink blackberry that his girlfriend loaned him after his broke at work. He covered it with a black phone cover. He identified the photo of the phone in the exhibits.
RE ROBBERY #3
WILLIAM HERNANDEZ
[26] William Hernandez was a high school student, 16 years old. He was at the movies that evening with his cousin Bryan and his friend Anthony Salazar. The boys had planned to phone William’s father to pick them up after the movies. The cell phones did not get a signal so they walked approximately five minutes to a gas station. William testified that Bryan and Anthony bought something to eat first.
[27] William observed a red car, which looked like a Pontiac Sunfire, drive up to the gas pumps. There was nothing remarkable about it.
[28] Outside there was a pay phone at the side of the building. He and his friends were trying to use the pay phone but it was jammed. While attempting to use the pay phone, he observed the red car drive up to them and stop.
[29] The car was stopped horizontally to the three of them. The passenger side of the car faced them. The windows were tinted.
[30] It was dark out that evening. It was around midnight. The only light was from a light post and from the gas station.
[31] He saw a passenger get out of the rear driver’s side seat and mumble something. He could not make out the words.
[32] William observed the rear passenger side window to be rolled down and a gun appear – he then knew that things were serious. He was closest to the car and said that, although the gun pointed around all three of them, it was mostly pointed at him.
[33] William could see the person holding the gun and could see the gun shining in the light from the light post. He said the gun was a handgun and relatively small. It was black with gray and a silver barrel. He remembers markings on the grip, and he remembers the trigger. He looked at an exhibit photograph of a gun and said it looked like the one he had seen that night. He recognized the rectangular shape and the black or gray and silver look of it.
[34] William described the passenger with the gun to be a male with dark skin. He had short hair and no facial hair. He could not recall anything on the man’s head. The passenger with the gun told them not to move. The passenger with the gun repeated this saying, “Don’t move”.
[35] William did not say to police that the man had an accent.
[36] The man who had gotten out of the car was aggressive and touched all their pockets and took “their stuff”.
[37] He described the man outside the car as dark-skinned, with facial hair which William called a “stash”, and that the man wore a hat over an afro of longer hair. William said that he wore a gray hoodie, military green cargo shorts, and sandals. He could not recall the colour of the hat. He recalled the hood was not up on the man’s head.
[38] He described the man holding the gun instructing the man outside the car to “take their hats”.
[39] The man outside the car took William’s turquoise ball cap and his dark blue wallet that had a horse insignia on it. The wallet had some change in it and a student ID. (These items have never been returned to him.) The man got back into the rear seat on the driver’s side of the car. The vehicle then drove off.
[40] William said that he only saw three people in the car, and that he was not sure if there were others. He did not hear the driver speak. On cross-examination it was pointed out that he told police that there were four occupants in the red car. He explained that he believes he never saw a face, just a shadow. He believed that he was just using logic, that if the two men were in the backseat plus the driver that there was likely a fourth in the front passenger seat.
[41] William said they were scared and shaken up. After a few minutes they went to the cashier of the gas station and asked him to call the police. The cashier had no cell phone. William’s cousin Bryan still had his cell phone and they were able to dial 911 and speak to police.
BRYAN HERNANDEZ
[42] Bryan is William Hernandez’ cousin. He was 16 at the time of the incident. He recalled that the movies ended around 11:00 p.m. He, William, and their friend Anthony Salazar, walked to a gas station to call his uncle for a ride. Their cell phones did not have a signal.
[43] Bryan saw the red car at the gas pumps. He saw the driver get out to pump the gas. The driver was black-skinned, “pretty young”, wearing a red hoodie, “camo” shorts, and sandals.
[44] Bryan said that the red Pontiac Sunfire drove over to them. The passenger side of the vehicle was next to them. The driver did not get out. He could see three people in the car. The windows were tinted.
[45] The passenger got out of the front passenger seat and took their stuff. The man who got out did not really say anything. He was wearing dark green shorts, sandals and a blue hoodie with the hood on his head. The man had a beard. He thought the man was shorter than he was. Bryan thinks his own height is now 5’8’’, and thinks he was shorter when he was 16, when this incident occurred. Under cross-examination, after seeing his video statement, he agreed that he told police that the man taking their stuff was “his size or a bit taller, six feet”.
[46] Bryan saw the rear passenger window roll down. The rear passenger said to “take the hats”. Bryan just saw one person in the rear seats. The rear window had been rolled down pretty far. He did not see a gun.
[47] Bryan described the rear passenger to be a guy with black skin. Under cross-examination, he agreed that he had described the man to the police as looking big and fat.
[48] Bryan’s Los Angeles Kings hat was taken.
ANTHONY SALAZAR
[49] Anthony was 15 years old at the time of this incident. He had been at the movies with Bryan and William Hernandez. They had gone to the gas station to use the pay phone and get some snacks. He thought it was about a ten-minute walk to the gas station.
[50] He recalled they bought snacks.
[51] Anthony saw a red Pontiac with four doors at pump number three. He was sure it was getting gas. The person pumping gas wore a red hoodie and got in the driver’s seat.
[52] The pay phone was jammed and they could not use it. While they were at the pay phone the red car approached them.
[53] Anthony noticed three people in the car – two in the front and one in the back with the gun. He described the back part of the car facing them – the trunk. He said he could see the whole car.
[54] A passenger got out of the car and came to him and patted him down to see if he had a phone on him. Anthony said his height was 5’1’’ and the man patting him down was taller than him. He thought perhaps 5’6’’ or 5’7’’. He had an average build. The man had black skin but not too dark and not too light. He wore a gray hoodie, a baseball hat with the hood up, flip flops, and shorts.
[55] He said the back passenger had a gun. He said it was not pointed at anyone. He felt scared. The gun was black with gray stripes on it. He said it was a small gun, perhaps a nine millimetre. He confirmed it looked the same as the photo exhibit. He could not describe the passenger with the gun. That man said, “take their hats”. Anthony did not notice anything unusual about the man’s speech. He did not notice an accent.
[56] The man asked him if he had any phones on him. The man took his android phone and his baseball cap.
[57] Anthony was shown the gas station surveillance video of 12:37 a.m. that day. He confirmed that the red car and the man, in the red sweatshirt, pumping gas, was what he saw.
EVIDENCE OF THIRD ACCUSED RE ROBBERIES #1, #2, #3
TYRONE LESS
[58] Tyrone Less is charged separately for these same robberies with the use of a firearm. His trial is scheduled for September. He has not made any deal with the Crown for concessions on his own prosecution in exchange for his testimony.
[59] Tyrone is now 20 years old and attends Seneca College in civil engineering. He lives with his mother.
[60] He identified Nathan Babbington and Travis Babbington in the court room. He also identified each of their police photos which were exhibits.
[61] Tyrone stated that Travis looks the same now as he did in the photos, except he now has hair and had no hair in the photos. I note that the photos show a closely shaved head and Travis now has a full head of hair combed into several small braids.
[62] Tyrone testified that Nathan had facial hair in the photograph and no longer does. He also noted that Nathan’s hair is now cut short compared to it being long in the photograph.
[63] Tyrone was asked to describe the events of that evening. He said he was headed home from Trinity Commons, where he had gone to get food, when he saw Travis and Nathan, the two accused, crossing the street. They called to him and stopped to talk.
[64] Tyrone was driving his mother’s red four-door Pontiac Pursuit. They asked for a ride home and he agreed. He said Nathan sat in the front passenger seat and Travis sat in the rear seat behind Nathan.
[65] Tyrone explained how he knew the two brothers. His aunt is godmother to Nathan’s sister. Nathan’s father and Tyrone’s step-father came from the same place in Jamaica. Tyrone said he met them a year before at a family barbeque in Markham and they spoke briefly. He had seen the brothers two times after that, before the incidents of this evening. Nathan was introduced to him as “Purp”.
[66] He thought he picked them up around 7:00 or 7:30 p.m. They asked him then to stop at their friend’s home in the area. They did so and they spent a short time there.
[67] They were then planning to get some food and Tyrone received a phone call regarding a party he was promoting. He had to stop by a friend’s to pick up tickets, which he did.
[68] They did not get any food and ended up driving along Larkspur near Sunny Meadow. He saw an Indian man walking down the right side of the street. Nathan insisted Tyrone pull up to the side. Tyrone asked “why” but they just told him to slow down and stop there.
[69] As he stopped, Nathan jumped out of the car and approached the man on the street. About two minutes after, Travis got out of the car. He saw Nathan getting aggressive with the man. It took three or four minutes and then they got back in the car.
[70] When he stopped the car Tyrone said he did not know what was going to happen. After, he realized they were “robbing the guy”. The Indian man was screaming. Tyrone could see Nathan was sticking the man in the ribs. He did not observe any physical touching or injury to the Indian man.
[71] When they got back in the car, he saw what had gone on. Nathan was in the front seat and had a wallet that he had taken from the Indian man. Nathan passed back the gun to Travis in the rear seat.
[72] Tyrone described the gun as black. That was all he could remember.
[73] He said he was in shock as he never expected this. He argued with them but drove off as they said, “drive, drive”. He said he wanted to stop there.
[74] When they drove off Tyrone said he asked Nathan and Travis what is going on. They argued. He said Nathan told him to “just relax”. Tyrone said his main thought was to drop them off. He knew where they lived off, Sunny Meadow, but not the name of the street. It was about five minutes away.
[75] He did not take them home because, on the way, they said they wanted to pick up food. So they headed to a pizza place.
[76] On the way there, on Ocean Ridge drive, Tyrone testified that he was still in shock and wanted a cigarette. He saw a guy approaching, on the road, on a bike. As they were passing, Tyrone stopped him because the cyclist was smoking a cigarette. Tyrone said he shouted out, “extra smoke?”. The cyclist said he did not have one. He described the cyclist being at the driver’s window on his phone. Tyrone then heard Nathan say to “throw the phone in the car”.
[77] Tyrone testified that the cyclist smiled and said, “okay, okay, I don’t want no problem.” The cyclist threw the phone in the car and they left.
[78] Tyrone said no one got out of the car, but that he opened his door and put his left leg out.
[79] His evidence was that Nathan, seated in the front seat, had the gun sitting in his lap, but it was not used for this robbery.
[80] They continued on toward the pizza place to get food. Tyrone testified that he was wondering what he had got himself into. He said he was trying to figure out a way to drop the brothers at home without a serious altercation. He said he felt intimidated because of the gun the brothers had.
[81] Tyrone thought it was about 11:00 or 11:30 p.m. at this time. He told the brothers he was going to drop them home, close to Sunny Meadow. They agreed and said to him that it was fine to drop them home.
[82] On his way to drop them home, Tyrone states that he noticed the car was low on gas and the only gas station was the Shell by Sandalwood and Highway 410.
[83] At the Shell gas station he parked, and went out to pay for the gas. He says he saw three boys buying food at the gas station. Tyrone bought $10 worth of gas. The receipt was an exhibit and shows a payment for pump #3 at 12:34 a.m. Tyrone agreed they got the gas after midnight.
[84] He saw the boys again later standing at the curb next to the exit as he was driving the car out.
[85] Tyrone states that Travis told him to “pull up, pull up” on them. He said Travis rolled down his window and pointed the gun at the three boys, saying, “don’t move”. Tyrone stopped the car. He described Nathan jumping out and taking the hats off the three guys and taking their phones. Travis stayed in the back seat behind the passenger’s seat. Nathan came back in the car and Tyrone drove the brothers’ straight home from there.
[86] Tyrone said Nathan had taken two hats and two phones.
[87] Tyrone identified the gun that was an exhibit. His evidence is that he did not ever hold the gun.
[88] Tyrone was shown the video surveillance of pump #3 of his mother’s red car. He identified himself exiting the driver’s seat and going to pay for the gas. He returned and spoke to Travis at the back passenger window. He explained he left his money in the car. He asked Travis to pass it to him.
[89] In the video-still, the rear passenger is wearing a white ball cap. He stated that was Travis. The video showed movement in the front seat and he said that was Nathan.
[90] Two video-stills at pump #3 show the time as 12:38 a.m. and 12:41 a.m.
[91] Tyrone described the clothing he was wearing in the video-stills. He had on a red hoodie pullover, brown plaid shorts, slippers and socks. He agreed the red hoodie and flip flops, entered into evidence, were his. Tyrone confirmed in one video-still he is wearing the ball cap and in another, he is not.
[92] Tyrone described Nathan as wearing camouflage green shorts, a dark shirt, socks and slippers that evening. He described Travis as wearing jeans, a dark shirt and a cream or white hat.
[93] He also identified a green bag. He explained that when he picked up the brothers they had gone to their friend’s house. They stopped there and Travis came out with the green bag.
[94] The green bag was left in Tyrone’s car and was seized that night by police. It had the gun in it.
[95] Tyrone explained that after he dropped them off, as he was nearing his own house, he noticed they had left the green bag. He lifted it into the front seat. He also moved a hat and cell phone that they had left. He testified that he did not know what was in the green bag.
[96] When he arrived home, he was arrested. That evening, he gave the officer Travis’ name and cell phone number.
CROSS-EXAMINATION OF TYRONE LESS
[97] Tyrone was cross-examined on a number of inconsistencies between his evidence at the preliminary hearing and at trial as well as his police statement immediately after his arrest. A number of problems with his evidence were pointed out:
i. The strength of his knowledge of the Babbington brothers;
ii. Timing;
iii. The route of travel; and
iv. Conflict in evidence re: involvement of the driver.
[98] Tyrone was asked about his relationship with Nathan and Travis. He agreed that he did not know the name and number of their street, but knew where it was. He said he had been in that house before when they were not there.
[99] Although at trial he said he had seen the brothers twice since meeting them at the barbeque, at the preliminary hearing, he testified that he met the brothers once after the barbeque, before the night of the robberies. At first he agreed that he had just met them once before the robberies, but then said he had seen them two times after the barbeque and before the robberies. He said he saw them at a friend’s house and at a house party. He suggested he had a clearer recollection now.
[100] When questioned by police on the night of the robbery, he did not know their last name, Babbington. He did not know Nathan’s actual name and knew him only as “Purp”. Even as of the preliminary hearing he did not know their last name was Babbington. He did not offer to show police where they lived. He did not offer to the police that Travis and “Purp” were brothers.
[101] At trial Tyrone testified that Travis was wearing jeans, a dark shirt and a white hat. At the preliminary hearing, Tyrone could not give any specifics of what Travis was wearing other than jeans.
[102] Tyrone agreed that he heard the other civilians testify previously. He advised that he had not seen the surveillance video before the day of trial evidence.
[103] Tyrone had a number of problems with his evidence on timing. Although at trial, Tyrone said he picked the brothers up around 7:30 p.m., he agreed that at the preliminary hearing he said he first saw them at 9:30 p.m. He said he was now unsure about the time and said the sun was setting.
[104] Tyrone agreed under cross-examination that he was supposed to go to a party that night that he was hosting. It was to start at midnight. He invited the brothers to the party. His plan was to drop them home, do some errands and then get to the party.
[105] His times did not match up with the independent evidence of when the robberies occurred.
[106] He said he got caught up with the incidents of the robberies, but that all he wanted was to get them out of the car. It was pointed out that he was already late for the party at midnight if these three robberies all occurred after midnight. He kept answering that he figured he had time to get there.
[107] On the timing, he said he recalled the first robbery occurred shortly after they left Travis’ friend’s house when Travis brought out the green bag.
[108] At the latest, if he picked them up as the sun was setting at 10:00 p.m., there is no explanation of what they were doing and why it was not until midnight when the first robbery occurred. He could not explain this.
[109] Tyrone testified at the preliminary hearing that the party was to start at 11:00 p.m., but he had to get amplifiers and he would get there by 12:00 a.m.
[110] Regarding stopping at the friend’s house and Travis coming out with the green bag, Tyrone stated he did not ask what was in it. He said Travis had it in the back of the car the whole time.
[111] Tyrone was questioned as to why he had more detail of the events at trial than he did at the preliminary hearing.
[112] It was pointed out to Tyrone that at the preliminary hearing, he did not give evidence of Nathan getting aggressive with the Indian man in Robbery #1, and sticking something in the man’s ribs. At the preliminary hearing Tyrone said that he could not see much of anything because the car windows were tinted. At trial, he was more specific and descriptive of events and details.
[113] He was asked how Nathan got the gun, and he explained that Travis passed the green bag over to Nathan on the right side, next to the door. Tyrone offered that Nathan must have slipped the gun out of the green bag as he exited the car.
[114] Tyrone had problems with the routes he took.
[115] Although Tyrone kept stating he was in shock and scared for his life, it was pointed out how odd it was that he would take the brothers for food. After Robbery #2 on Ocean Ridge Drive he was questioned why, if he was scared, that he would pass the area of the brothers’ house to go to the gas station. He had no explanation other than he needed gas.
[116] Tyrone had problems with his story, denying any personal involvement, contrary to the victims’ evidence in Robberies #1 and #2.
[117] Tyrone had agreed that he was the driver for the entire evening.
[118] Tyrone, when challenged about the evidence of both Terry Ercegovic and Rajiv Paudwal saying “the driver got out” and robbed them, said that that did not happen. He gave no other explanation why those witnesses would describe the events so differently than he.
[119] Tyrone was cross-examined about his statement to the police. When questioned by police, that night, he said that in the incident with cyclist, they pulled up and he was instructed by his passengers to “do this, you do this”. Tyrone told the police that it was he, himself, who told the man, “give me your phone” and the cyclist said, “oh well, take it”.
[120] To explain this different story to police, Tyrone said he was cold, the feelings in his head were mixed up, he had not eaten, and those facts in the police statement were not right.
[121] Tyrone was also cross-examined about the third robbery when he stopped the car next to the three young boys on the curb at the gas station. He was asked why he stopped, if he was so scared, and had observed two previous robberies. His explanation was that he was exiting and going slowly, perhaps five kilometres, when Nathan jumped out of the car.
[122] He was cross-examined as to, why, if he was so scared, he did not ask the cashier at the gas station to call the police.
[123] In fact, on the night of the robbery at the gas station, to the police, he did not say he was scared, but, rather, said that he “got caught up in the mood”. Tyrone testified at trial that he did not recall saying that to police.
PHOTOGRAPHS OF THE TWO DEFENDANTS
[124] The photograph of Travis Babbington, taken July 29, 2011, four days after the robberies shows a 20-year-old young black male. His head is shaved so there is only a fine indication of hair. He has a wide face. He appears to have an average build for a young man his age.
[125] The photograph of Nathan Babbington, also taken four days after the robberies, shows a 22-year-old young black male. His hair is black and wiry and rather longer, in a short afro hairstyle. He has facial hair indicating a slight moustache and beard. He appears to have an average build for a young man his age.
[126] There is no evidence of the height of either. From observing them in the courtroom I would estimate they were between 5’6” and six feet. I would agree that Travis is thin but would not describe him as “petite” as suggested by his counsel.
[127] Nathan and Travis Babbington chose to exercise their right not to testify. I remind myself that this factor is entitled to no weight: the burden remains on the Crown to prove the case, including the issue of identity, beyond a reasonable doubt.
POSITION OF THE CROWN
[128] The Crown recognizes that Tyrone’s testimony was not straightforward and the story of him describing himself as being shocked and scared for his life is “absurd”. The Crown acknowledged that Tyrone was clearly minimizing his role in the robberies contrary to the clear evidence of the civilian witnesses.
[129] The Crown described Tyrone’s telling of the exculpatory story to be understandable, although not excusable.
[130] The Crown urged the court to find that all three were doing these robberies together; aiding and abetting each other; that they were equal participants; and that each was a robber.
[131] He urged me to find that there was supporting evidence that strengthened the position that Tyrone is telling the truth regarding the identity of his accomplices.
[132] He argued that there is no reason or incentive to lie in making up the names of these two, and noted that he had already given the police the name and number of the person he did know.
POSITION OF COUNSEL FOR NATHAN BABBINGTON
[133] Counsel set out what is not in dispute. The defence jointly do not dispute that in the early morning of July 25, 2011, there were three robberies involving five victims. They do not dispute that Tyrone was present and knew about them. They do not dispute that there were at least three involved. They do not dispute that the red car driven by Tyrone was owned by his mother. They do not dispute that the robberies involved the use of an imitation firearm and the victims did not know that it was imitation.
[134] What they do dispute is the issue of identity: that the robberies were committed by Travis and Nathan Babbington. They argue that identity has not been proven beyond a reasonable doubt.
[135] The only direct evidence regarding identity is from Tyrone.
[136] Counsel argued that it would be dangerous to convict on this unsupported evidence due to the inconsistencies in his testimony and due to the way he minimized his involvement. He urged the court to find Tyrone was not candid, not truthful and not forthcoming, and thereby not credible on the identity issue.
[137] Counsel asked me to look at his evidence as a whole. He suggested that Tyrone is not truthful or reliable on anything, that he lied about the route, the intent and about who did what.
[138] Counsel suggested that statements that tend to confirm the victims’ evidence are explained by the fact that Tyrone has been studying the case. He has heard the evidence at the preliminary hearings. The extra details at trial were not mentioned to the police on the night of the incident regarding the brothers. That evening he did not give their last name or a street name. Even at the preliminary hearing he did not know their last name.
[139] Counsel pointed out that the civilians gave only a generic description. There is no dispute that the people in the car were young black men, but he urged the court to find that it is not proven beyond a reasonable doubt that it was the two young black accused that were involved in these robberies.
[140] Counsel argued that Tyrone is clearly ready to lie.
[141] If I was to find that Nathan Babbington was present, Counsel argued Nathan was not involved in Robbery #2. The cyclist, Mr. Ercegovic, described that only the driver came out with the gun and took his things. Counsel argued the evidence of Nathan just tipping his hat does not make him a party to the offence.
POSITION OF COUNSEL FOR TRAVIS BABBINGTON
[142] Counsel pointed out that the civilian descriptions were not consistent and they were vague. She urged that it would be dangerous to convict on Tyrone’s evidence.
[143] She urged me to find Tyrone unreliable in many ways: the timing; the route of travel; and his unlikely description of the gun being passed up between the door and the seat. His story of his innocent involvement in the robberies does not match up with the evidence of the first two victims who pinpointed “the driver” in the red hoodie robbing them.
[144] She pointed out that all the supporting evidence he provided about the three robberies is easy for him because he was caught red-handed on video, and with the stolen property and the weapon.
[145] She urged me to find him evasive.
[146] She pointed out inconsistencies concerning time; the party was to start at midnight, but the first robbery was at midnight.
[147] Counsel pointed out in Robbery #3 at the gas station, that William Hernandez said the rear passenger had no accent. Tyrone agreed that Travis speaks with a Jamaican accent.
[148] Counsel pointed out that Bryan Hernandez, at the preliminary hearing, described a six foot tall passenger taking their things and the man in the car as big and fat. It is argued that neither of these descriptions match the brothers.
[149] Counsel suggested that the fact Tyrone could not tell the officer the brothers’ street name on the night of his arrest is preposterous.
[150] She suggested Tyrone is not credible or reliable and that he is fabricating. She suggested that as the gun was found in his car he is creating these stories to pin blame on others.
[151] She argued that Tyrone had incentive to lie.
[152] Counsel argued that if the court accepts the evidence that Travis was in the vehicle, there is no evidence that Travis was involved in Robbery #1 (as he was not seen by Mr. Paudwal) or Robbery #2 (as he was not seen by Mr. Ercegovic). She argued that there was no evidence by the victims that Travis said or did anything in those robberies.
ANALYSIS
THE INCONSISTENCIES IN THE VICTIMS’ EVIDENCE
[153] The victims’ testimony standing alone is inadequate to support identification. As well there were internal inconsistencies that must be weighed in the context of Tyrone’s direct evidence of identity. All the victims confirm that the robbers were young black men, as are Tyrone and both accused. The descriptions of size were all of average or slim builds and height. The exception was Bryan Hernandez who described, on the night of the robbery, the back passenger as being big and fat. Tyrone identified the back passenger as being Travis Babbington. Travis has a wide face but he is not big and fat. Bryan was a nervous and hesitant witness who did not appear to have many clear recollections of that evening. He was looking at the rear passenger through the car window and may have had the impression of a larger man. I do not find his evidence precludes a finding that Travis was that man. The surveillance video suggests an average sized young man in the rear passenger seat.
[154] Neither Mr. Paudwal nor Mr. Ercegovic observed a third passenger in the back seat of the car. William Hernandez said the rear passenger with the gun had short hair and no facial hair. This is consistent with the photograph of Travis.
[155] William Hernandez said the passenger who got out and took their things had facial hair, which he described as a “stash”. This is consistent with the photograph of Nathan. William said the man wore a hat over an afro of longer hair. The photograph showed an afro of longer hair.
[156] The clothing described was not clear or consistent. Mr. Paudwal said the front seat passenger (identified by Tyrone as Nathan) wore a whitish or light gray hat, jeans and a t-shirt. Mr. Ercegovic said the front seat passenger wore a ball cap with a holograph sticker on it. William Hernandez described the passenger that got out from the car to take their stuff wore a gray hoodie, military green cargo shorts, and sandals. He had a hat on and the hood was not up. Bryan Hernandez described the man’s clothing as being dark green shorts, sandals and a blue hoodie with the hood up. Anthony Salazar described him as wearing a gray hoodie, a baseball hat with the hood up, flip flops and shorts.
[157] William Hernandez testified that the passenger with the gun, identified as Travis by Tyrone, did not have an accent. The words spoken, however, were simply, “take their hats”.
THE DIRECT EVIDENCE ON IDENTITY AS PROVIDED BY TYRONE LESS
[158] Caution must be exercised when considering the evidence of Tyrone, as an accomplice, and an accused awaiting trial for the same charges.
[159] The Supreme Court of Canada in R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, at p. 823, noted, “the testimony of some accomplices may be untrustworthy.” While there is “nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy,” an accomplice’s evidence requires careful scrutiny.
[160] In R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 22, the court directed, “having considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness -- even on disputed facts that are not otherwise confirmed -- if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful.”
[161] I refer to the law as reviewed and set out in McWilliams Canadian Criminal Evidence, 5th ed. (Hill, Tanovich and Strezos): “Corroboration” 34:70:90, concerning the evidence of accomplices. A Crown witness awaiting trial on outstanding charges may have his testimony influenced by his desire to curry favour or advantage with the Crown for his own case. This is an important factor to consider.
[162] Both defence counsel urged to me to find that Tyrone had some incentive to lie in his testimony.
[163] When considering how much or little I believe or rely upon Tyrone’s evidence, I must keep in mind that as he is also charged with these offences; that he has attended not only the preliminary hearing of this case, in which he would have been excluded for other evidence, but the preliminary hearing on his own case, such that he has heard all the witnesses testify.
[164] I note that he was evasive in questioning and told a different sequence of events from all the witnesses, which minimized his role in the alleged criminal acts of the evening. However, I find that those oddities and inconsistencies speak to Tyrone’s culpability and his participation in a group intent to rob more than they do as to whether he is accurate about describing who his accomplices were.
[165] The detail he provided at trial on identity was much greater than what he gave at the preliminary hearing and in his original statement to the police. This is a factor to consider in that he may well be enhancing his testimony on identity to seek an advantage for himself, or even subconsciously.
[166] Tyrone’s first identification of Travis and Nathan was on the night of the robberies after his arrest, in his self-inculpatory statement. This is of significance.
[167] His testimony later, in which I find he massaged the facts to lessen his own involvement, makes limited sense: it contradicts the credible victim witnesses; it contradicts logical routes on the map for his various destinations; and it contradicts the timing set out by the video surveillance, the gas receipt time and the credible evidence of the victims. However, his identification of his co-accused has not altered.
[168] Tyrone’s evidence was unshaken when he gave Travis’ name and cell phone number to the police immediately after the event. This was at a time when his description to police about his own involvement lined up with that of the victim witnesses. He identified Nathan, saying he knew him as “Purp”.
[169] Aware as I am of the dangers inherent in identification evidence and in the evidence of a separately charged accused awaiting trial, I am nonetheless persuaded beyond a reasonable doubt that Tyrone’s evidence on identity, first given so close to the event, is reliable. I find this to be so despite the rest of his evolving story describing himself as an innocent pawn, which contradicts the evidence of the victims.
[170] I am satisfied beyond a reasonable doubt on the issue of identity.
AIDING & ABETTING ISSUE
[171] Counsel for Nathan Babbington has argued that an issue arises concerning Nathan’s involvement in the second robbery.
[172] Counsel for Travis Babbington has argued that an issue arises concerning Travis’ involvement in the first robbery.
[173] A person may be found guilty of an offence because he or they helped somebody else to commit it.
[174] An aider may help another person commit an offence by doing something or failing to do something. It is not enough that what the aider does or fails to do has the effect of helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary.
[175] Aiding relates to a specific offence. An aider must intend that the offence be committed, or know that the other person intends to commit it and intends to help that person accomplish his goal. A person can be an aider by commission or by omission.
[176] Persons who encourage others to commit an offence may also be found guilty of the offence they encourage.
[177] I consider how the third robbery is described by the victims.
[178] The driver pulls up to the pedestrians; the one passenger gets out and takes the items; and the third holds the gun. The conduct demonstrates a team effort where each assists and supports the other.
[179] The first robbery occurred at midnight according to Mr. Paudwal on his regular commute home from work.
[180] The second robbery occurred after midnight, about 12:30 a.m., according to Mr. Ercegovic.
[181] The third robbery occurred at shortly after 12:47 a.m. when the video surveillance ends as the car pulls away from the gas pumps.
[182] The manner and similarity of all three robberies, where the vehicle approaches pedestrians, shows the gun, takes money and cell phones, and the timing of all three occurring in less than an hour, supports an understanding that the three men were working in concert together to achieve the one goal of robbing pedestrians.
[183] This clearly constitutes aiding under our law to both accused.
CONCLUSION
[184] Accordingly, I have endorsed the record as follows:
Nathan Babbington; Counts 1, 2, 3, 4, 5, 6, 7: Guilty as charged
Travis Babbington; Counts 1, 2, 3, 4, 5, 6, 7: Guilty as charged
M. J. Donohue J.
Released: September 19, 2013
COURT FILE NO.: CR-12-00002345-00
DATE: 2013-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N
Her Majesty The Queen
Applicant
- and -
Travis Babbington and Nathan Babbington
Defendants
REASONS FOR JUDGMENT
M. J. Donohue J.
Released: September 19, 2013