ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: 781/12
DATE: 2014/04/15

B E T W E E N:

HER MAJESTY THE QUEEN

S. Monaghan, for the Crown

Respondent

• and -

KRISTOFF GALLIMORE

P. Thorning, for the Appellant

Appellant

HEARD: January 17, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice W. Rabley]

A.J. GOODMAN J.

[1] This is an appeal against conviction and the sentence imposed by Rabley J. of the Ontario Court of Justice at London Ontario.

[2] The events giving rise to these offences occurred on March 21, 2010 in the City of London. The trial proceeded on all of the allegations and the appellant was convicted of two counts of assault with a weapon and one count of possession of a weapon dangerous to the public peace, all contrary to their respective provisions in the Criminal Code.

[3] The appellant was sentenced to 6 months in jail concurrent, along with a 12 month term of probation.

The Evidence at Trial

[4] The evidence in this case has been laid out in the appellant’s factum and Reasons for Judgment. I have also been provided with the transcripts of the proceedings. For the sake of brevity, I will only refer to brief portions of the evidence in my analysis of the specific grounds of appeal, although all of the relevant evidence has been examined.[^1]

[5] On March 21, 2010, the appellant, his brother Wayne Gallimore (“Wayne”) and Joseph Worton (“Joseph”) were in London for a birthday party. They met up with another friend, Justin Cory (“Justin”) and went to various drinking establishments. Later, the same group was walking along Talbot Street and it was at this point that they met up with Anna and Iva Braunstajn (“Anna and Iva”) and their group of friends. The latter had been out at a bar and were standing outside of Monte’s Pizza. While others of the group were inside, Anna, Iva, and two males, Matthew Ljubicic (“Matthew”) and Kresimir Saric (“Kreso”) stood outside the pizza restaurant.

[6] As the appellant’s group walked by, Joseph made a comment directed towards the Braunstajn sisters. Either Matthew or Kreso took exception to the comment and responded in kind, and a confrontation ensued.

[7] Justin then punched Matthew in the face. Following the first punch, friends of Matthew and Kreso poured out of the restaurant. The appellant’s group retreated across the street about 10 to 15 feet away and a number of fights broke out. During this melee, Peter Zovko (“Peter”) was stabbed in the stomach area with a knife. Matthew was hit on the head with a knife and was also struck with his own shoe.

[8] Anna testified that she saw the appellant reach into his pocket with his right hand to pull out a knife. She cannot describe the knife and cannot say how it was used, but shortly thereafter Matthew and Kreso complained they had been stabbed. Anna described the appellant as being shorter than the other two. She remembered his skin tone and hair. In describing his hair, Anna recalled that the appellant “actually had hair in dreads before, so he was longer, the same length”. Anna testified that he was wearing a green olive jacket and blue jeans.

[9] According to Anna, the appellant then took off and went behind the pizza place. The other two men went the opposite way. Ten minutes later, Anna saw the appellant getting into a police car. Anna claimed she knew it was the same person because he was wearing the same clothing and he had the same dreads and cornrows. Anna and Iva were not involved in the fight.

[10] In cross-examination, Anna clarified the first aggressor was the male with blonde hair; that things were moving quickly, and the lighting would have caused a bit of difficulty. Anna further testified that she was calm throughout the affair and that she had only two drinks in the 2.5 hours they were at the bar.

[11] Iva testified that she was outside the pizza parlour with Anna, Matthew and Kreso. Four men walked by, comments were made, and the four men walked back towards them. Iva testified that the Caucasian from the group of four threw the first punch. Iva also identified the appellant and said that he was 5’9” to 5’10”, about 150 pounds and had cornrows. She could not describe the other two males.

[12] Iva testified that Matthew had been pushed to the ground by the group of four men. He was being kicked when the appellant pulled an object out of his right shirt pocket, with his right hand, and swung it towards Peter. The appellant then moved back towards Matthew, struck Kreso on the head and ran away.

[13] In cross-examination, Iva acknowledged that she told the police that she did not see the knife and that part of the appellant’s body would have been blocking her view. Iva was told somebody had been apprehended, but she did not see who it was.

[14] Peter also identified the appellant in dock as a person involved in the fight. Peter testified that the appellant had cornrows, dark hair, and he was black with lighter skin. He could not remember the appellant’s clothing because he was in a little bit of a shock. He could not recall how he was stabbed and did not see the appellant hit anyone else.

[15] Peter saw the police bring the appellant back to the scene in handcuffs. He knew that it was the appellant because of the cornrows and because he is black. Peter identified the appellant to the police as the perpetrator. He recalls the appellant being thin and about 6’2” and he could not recall the description of any of the other involved persons. In cross-examination, Peter agreed that he was intoxicated to some degree. He acknowledged while he told police he was not sure how he got stabbed, and whether he saw a knife, he was now certain (at trial) that he did see a knife.

[16] After consuming more than 10 drinks, Luka Josipovic (“Luka”) observed a group of three men involved in an altercation with his friends. One of the three was Asian and was a little over 6’0” tall. Another was an black male wearing a green sweater and his black hair was tied down like dreadlocks. Luka could not recall much else because it was dark and the incident occurred quickly. Luka saw the appellant hit Kreso on the top of his head with the butt end of a knife, and hit Matthew with Matthew’s own shoe. Shortly thereafter, the group of four persons ran away.

[17] Kreso described a group of four or five men involved in the altercation with him and his friends. Two of them were black; one had cornrows and the other short dark hair. Kreso described the appellant and said he had light skin, a goatee or moustache-goatee, was wearing a greenish jacket, and that he was about 6’0” tall. The other black male was wearing jeans and a red shirt, had short black hair, was 165-170 pounds, and was about 5’10”.

[18] Kreso testified that he was hit on the head, but he does not know by whom. Kreso observed Matthew was hit by the “other black guy”, who also hit him with his shoe when it fell off. He saw the appellant in the police vehicle when it drove by a few minutes later. In his examination, Kreso testified that the order of events was that he was struck from behind, and then Peter ran over and was stabbed.

[19] Matthew, who was hit with a shoe, described the opposing group of males as consisting of at least two black males and a heavy set white male who was at least 6’0” and 250 pounds. Matthew remembered the appellant being there because he pointed him out to the police as the police were arresting the appellant. Matthew explained he was involved in an initial confrontation, then after walking a short distance he tripped and was hit with his shoe that had fallen off. Mathew believed the white male hit him with his shoe. Shortly thereafter, the appellant grabbed Matthew’s neck, ripped off his necklace and struck him with an overhand fist on the top of his head. Kreso picked up the necklace and put it into his pocket. Matthew did not see how the injury to Kreso occurred.

[20] Matthew was about three feet from the police when they had custody of the appellant. Matthew testified that he knew it was the same person that he was fighting with because the appellant shared the same build and hair: short shaven hair, white shirt and jeans. In cross-examination, Matthew acknowledged that the police told him that they had apprehended a suspect. He further acknowledged that he got a better view of the appellant when he was in police custody than when the fight was occurring.

[21] Drago Putica (“Drago”) testified that he had consumed alcohol. Drago saw a black male hit his friend, Stephen, but he is not able to identify the person with 100 percent accuracy. According to Drago, the appellant had cornrows, a white t-shirt, and he was 6’1” and 200 lb. Drago testified that he was clear that from a distance of about 10-15 feet, he saw the appellant hit Matthew with his shoe. Immediately after, he threw the shoe and the appellant and his group ran away.

[22] Drago saw the appellant being put in handcuffs and he knew it was the same person who had hit Matthew with a shoe because “he recognized that white t-shirt and cornrows … and he was the only one with cornrows that was there.” In cross-examination, Drago acknowledged that he got the best view of the appellant when he was in custody.

[23] Stephen Sesar (“Stephen”) saw the appellant in a group of four persons assaulting two of his friends and he noted that the appellant had cornrows and a bit of a goatee. Stephen could not remember what the appellant was wearing and described various members of the appellant’s group. He observed that the appellant was over top of Matthew before they fled. Within a couple of minutes, the police came back with the appellant and Stephen testified that “we identified him as one of the assailants.” Stephen did not know how Kreso received his injuries.

[24] Daniel Jurica (“Daniel”) was not present when the fight started, but when he arrived he saw the appellant hit Matthew with a shoe once on top of the head, then throw the shoe at Matthew, striking him in the chest. Seconds later Peter shouted “he has a knife” but he did not know to whom Peter was referring. When he turned around he saw a sharp object in the appellant’s right arm from about three to four feet away. There was also an Asian male with short hair between him and the appellant.

[25] Daniel admitted that he told the police that the knife wielder had “dreadlocks”; whereas at trial, he was “a hundred percent positive” the person with the knife had “cornrows”. Daniel observed the appellant wearing a white t-shirt and jeans and made no observations of the appellant’s height, weight or facial features. He admitted having consumed about eight to ten drinks.

[26] Daniel testified that he saw a police officer returning with the appellant. He was able to recognize the appellant from his cornrows, white shirt and jeans. In cross-examination, Daniel acknowledged that it was quite possible it was a white male on top of Matthew. He also acknowledged that when he spoke to the police about who was responsible, he believed that both Anna and Iva were present. Daniel denied speaking to the Braunstajn sisters at this point and was not sure what comments were made. He agreed that the longest period of time during which he was able to observe the appellant was when he was in police custody.

[27] P.C. Gerber was one of the first responding officers. When he first arrived on scene, witnesses pointed towards Tim Horton’s indicating that the suspects went in that direction. P.C. Gough took up chase and P.C. Gerber remained with the witnesses to obtain descriptions. P.C. Gerber described the appellant as light black, with cornrows braided hair, a tan/beige coat, a white-collared shirt with a black tee shirt underneath, blue jeans, brown leather shoes, light facial hair with sideburns and chin growth and a moustache.

[28] P.C. Gerber seized a knife near the scene, apparently found in a puddle of water. The CFS and the LPS examined the knife post-conviction for the presence of DNA and fingerprints. The CFS was unable to extract sufficient DNA to compare and no fingerprints were located on the knife.

[29] P.C. Gough arrived at the fairly chaotic scene and he heard someone say the person responsible for the assault had cornrows. He could see four persons running from the scene, only one of whom had cornrows. P.C. Gough continued to follow and when he arrived at Tim Horton’s, he caught up to and was speaking with the appellant, Wayne and Joseph. P.C. Gough identified the appellant with his driver’s license and arrested him for attempt murder. P.C. Gough noted that the appellant’s right hand was swollen, that he had some slight fresh blood, that some slight abrasions to his knuckles, and that he was wearing a greenish coloured canvas jacket (that was inside-out) and a white buttoned up short-sleeved shirt with a black t-shirt underneath. P.C. Gough also noted that the appellant had a distinct hairstyle as compared to the other three individuals.

[30] P.C. Gough walked the appellant back towards his cruiser which was parked in front of the restaurant. As he did so, a person (or persons) unknown said: “that’s the guy”. No other detainee was walked back to the group. When the appellant’s clothes were seized, the officer noted blood on his boxer shorts.

[31] The appellant testified that he and his brother Wayne, along with Joseph and Justin were involved in this incident. The appellant admitted that he was wearing cornrows on the night of the incident. The appellant testified that he did not use, hold or possess the knife at any time, yet he did hit one person with a shoe. The appellant added that he was fearful and did not want to fight; indeed, after the fight, his brother Wayne admitted that he had stabbed someone. The appellant testified that he “doesn’t believe in knives” because he watched his best friend die after being stabbed 56 times.

[32] The appellant explained that words were exchanged and as a male walked towards their group his friend Justin struck the male. Seconds later a group of 8-10 men came outside and began attacking their group. Two members of the larger group came at the appellant. He identified one male as Matthew and the other male as slim and 6’1”. He shouted at them that he did not want to fight. The appellant explained that he had an injury, his leg is easily breakable, the bone is fragile, and that he tries to stay away from fights.

[33] The appellant testified that after Matthew struck him, Matthew slipped and fell on his butt. As the brawl continued, the appellant ran away, tripped over the sidewalk and fell backwards, at which point Matthew (who had caught up to him) began to kick him. The second time Matthew kicked him, the appellant caught his foot and pulled it. Matthew’s shoe fell off and Matthew fell to the ground for the second time. The appellant, now on his feet, threw Matthew’s shoe at him. The appellant denied being involved at all times with the use of the knife.

[34] Wayne testified that some words were exchanged between Justin and another male, and they advanced on one another. After Justin struck the male, about ten large white males came out of the restaurant. Three to four of those advanced on him. After he had been punched in the face, he pulled a knife (which he described in detail) out of his pocket. Wayne testified that: “I don’t know if he realized I had it [the knife], but he was choking me and I used the knife and I poked him in his stomach.” After stabbing one victim, Wayne testified that he closed the knife, but soon thereafter became embroiled in another physical confrontation. Wayne hit this second person somewhere behind his ear with the butt end of his knife.

[35] As they ran away, Wayne exclaimed out loud that he thought he had stabbed someone. He discarded the knife and subsequently told the police he was not involved in any fight. Wayne testified that the police did not accept his response because he had injuries to his face. In cross-examination, Wayne testified that he brought the knife to London to use for cutting up marijuana and to protect himself. Wayne had heard stories about brawls in downtown London. Wayne admitted lying to the police upon his arrest.

[36] Joseph testified that his words started the altercation but that it was Justin who threw the first blow. He could not recall the exact positioning of combatants during the course of the brawl, except he did observe someone take a swing at Wayne, at which point Wayne struck the person on top of his head.

[37] The appellant was not known to any of the witnesses. The London Police Service did not conduct a photo lineup and did not, of its own accord, submit any items to the Centre of Forensic Sciences for examination. There was no forensic evidence linking the appellant to the knife seized by the police.

(continued verbatim…)

[^1]: With respect, and strictly for ease of reference, I will refer to all of the parties by their first names.
[^2]: I touched on this point briefly during my discussion of the hearsay issue.