Court File and Parties

Court File No.: CR 7/15 Orangeville Date: 2016-08-03 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Jamal Esho

Counsel: R. Fetterly, for the Crown, Respondent S. Nichols, for the Defendant/Appellant

Heard: February 5, 2016

Summary Conviction Appeal

Reasons for Judgment

Gibson J.

[1] The Appellant Mr. Jamal Esho was convicted following a trial by Maund J. on October 24, 2014 of assaulting his spouse Anie Mousa in June 2013, and for assaulting and threatening death to his spouse Anie Mousa and to his step-daughter Anna Said. The Appellant pled not guilty to all charges and testified in his own defence. He was found not guilty on a charge of forcible confinement of his spouse, and of assault and threatening against Ms. Said.

Issues

[2] Mr. Esho appeals against the convictions on four grounds set out in his Amended Notice of Appeal, namely that the learned trial judge erred in:

a. Admitting into evidence five emails between himself and his spouse Ms. Mousa during a period of separation prior to the incidents giving rise to the charges, which should have been excluded as prior consistent statements by the complainant; b. Admitting into evidence prior acts of discreditable conduct by the Appellant, and/or by failing to give adequate reasons as to why this evidence was admitted; c. Ignoring or failing to appreciate relevant evidence, and in particular not adequately addressing alleged internal inconsistencies in relation to the evidence given by his spouse and in the Crown’s evidence as a whole; and, d. That the verdict was unreasonable.

The Facts

[3] At trial, the Crown called three witnesses: Ms. Mousa, Ms. Said, and a neighbour Ms. McNulty who had given Ms. Mousa money for a cab on the date of one of the incidents. The only witness for the defence was the Appellant. Evidence and submissions were heard on July 17, 23 and August 29, 2014, and judgment was given on October 24, 2014.

[4] The Appellant and the complainant Ms. Mousa were married in November 2010. They have two biological sons together, and Ms. Mousa has an older daughter (Anna Said born in 2003) from a previous relationship.

[5] Ms. Mousa was the first witness for the Crown. She testified that in November 2013, she and the Appellant became involved in an argument regarding the family’s plans for the day. She testified that the Appellant wanted to go out with their eldest son alone and would not permit the family to go out as well.

[6] As a result of the argument, Ms. Mousa testified that the Appellant slapped her and then pushed her to the floor twice. He then began punching her and began to choke her. She told her daughter to call 911 but she couldn’t find the phone. Her daughter approached them and was also pushed to the floor by the Appellant. She testified that he said that he was going to finish her off and finish her daughter off. After this she collected her children and went upstairs. She believed the Appellant to be outside smoking. She borrowed money from a neighbour and took a taxi to a police station. She testified to having a bump on the head and bruises to her neck and arm as a result of this incident.

[7] In relation to another incident, Ms. Mousa testified that on June 5, 2013 she and the Appellant were sitting in the downstairs of their home when he showed her a picture of his niece who had a tattoo on her arm. They became embroiled in an argument about tattoos after which he slapped her and then hit her in the head with his elbow. She immediately fell to the floor and then sat up and started yelling that she couldn’t see or hear anything. Ms. Mousa testified that she eventually convinced the Appellant to take her to a walk-in clinic. He told her to tell the doctor that she had fallen down the stairs. She further testified that the pain persisted and that whenever she feels upset or cries that she feels the pain in her head.

[8] The next witness for the Crown was the neighbour, Ms. Patricia McNulty. She testified that on November 10, 2013, Ms. Mousa came to her house and asked to borrow money for a cab so she could go and visit her mother. Later that day the police came over to her home and asked her if she could look after the couple’s three children, which she agreed to so.

[9] The last witness for the Crown was Anna Said, Ms. Mousa’s daughter. She testified mainly in relation to three incidents involving the Appellant. She supported her mother’s version of events in relation to the November 10, 2013 incident and confirmed that when she tried to push the Appellant away from her mother she was pushed by him into a wall. She described an incident in October of 2013 when the Appellant roughly grabbed her out of a castle that she was playing in with her brother, also threatening her. She also confirmed that the family attended at a walk-in clinic and that she had seen a bump on her mother’s head that day.

[10] Several exhibits were filed by both the Crown and the Defence. At issue in this appeal, amongst other things, are five emails between the Appellant and Ms. Mousa that were introduced by the Crown. These were emails between the complainant and the Appellant from a period in 2012 when she had left the home and was staying with a friend in Hamilton. The emails allege various previous incidents of abuse and controlling behaviour. Evidence concerning prior uncharged incidents of violence by the Appellant is also at issue. The Appellant now contends that the trial judge erred in admitting into evidence prior acts of discreditable conduct by the Appellant.

[11] The Appellant testified at trial and denied the version of events advanced by the complainants.

Position of the Parties

[12] The Appellant has set out his position in the Amended Notice of Appeal mentioned above.

[13] On appeal, the Crown disagrees with the grounds of appeal advanced by the Appellant, and argues that evidence of the prior acts of discreditable conduct by the Appellant were properly admitted at trial (by agreement of the parties) to show narrative and context, and subsequently these incidents were used by both parties as being relevant to credibility. It also submits that the emails were properly admitted into evidence and used by the trial judge in appropriate ways which are adequately explained by him in his reasons for judgment. Moreover, the Crown says, the trial judge was alive to inconsistencies in the evidence and adequately addressed them in his decision. The decision reached was a carefully considered assessment of the evidence in which the trial judge’s decision to convict on some counts, and to acquit on some others, reflected a well-reasoned and supportable decision.

Analysis

[14] I agree with the Crown’s submission on appeal that past history of the conflicted relationship involving the complainants and the Appellant was necessary and appropriately led in this case to understand the narrative or context, and is a normal approach in cases involving allegations of domestic violence: R. v. D.S.F., [1999] O.J. No. 688 (Ont. C.A.).

[15] I also agree with the Crown’s submission that the uncharged incidents and the emails were relevant as narrative, and that their probative value was not outweighed by their prejudicial effect: R. v L.B., [1997] O.J. No. 3042 (Ont. C.A.). If the emails had been used as a prior consistent statement solely for the purpose of buttressing the credibility of the complainant, that would be an error in law; however, they were properly admissible here to rebut allegations of recent fabrication by the complainant.

[16] I also consider that the trial judge was alive to inconsistencies in the evidence and adequately addressed them in his decision. The trial judge engaged in a fulsome critical analysis of the evidence, and summarized his assessment of the credibility of each witness. While he found that there were some contradictions in the evidence of Ms. Mousa and her daughter, he ultimately determined that their evidence was very credible and corroborated by medical evidence and photographs. He rejected the Appellant’s evidence as being evasive, non-responsive, and contradictory and gave examples of this, as well as highlighting the Appellant’s reversals in his evidence concerning his statement to the police denying he had taken his wife to the clinic in relation to a head injury, or that she ever had a head injury, or whether he had seen or read the emails.

[17] The findings of the trial judge regarding credibility of the witnesses he had the opportunity to observe are supported on the evidence, and are to be accorded appropriate deference.

[18] The decision is not an unreasonable verdict. It is one that a properly instructed jury, acting judicially, could have rendered: R. v. Yebes, [1987] 2 S.C.R. 168 (S.C.C.) at 11.

[19] The trial judge’s reasons for judgment are sufficiently detailed to allow for meaningful appellate review of the decision. They sufficiently explained the process by which he assessed and reconciled problematic areas.

Disposition

[20] The appeal as to conviction is dismissed.

Gibson J. Released: August 3, 2016