Her Majesty the Queen v Freskela Malual, 2017 ONSC 3477
COURT FILE NO.: CR16-1758-0000 DATE: 20170602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Ms. Robin Prihar, for the Crown
- and -
Freskela Malual Mr. John Kaldas, for the Accused Accused
HEARD: May 30, 31 and June 1, 2017
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Charges
[1] The accused, Ms. Freskela Malual (“Malual”), is charged with four offences all arising from the same date – August 14, 2015.
[2] In the early morning hours, at Brampton, Ontario, she allegedly assaulted her live-in partner, Mr. Gerald Annis (“Annis”), contrary to section 266 of the Criminal Code.
[3] Further, she allegedly committed mischief to property under $5000.00 by damaging picture frames belonging to Annis, contrary to subsection 430(4) of the Criminal Code.
[4] Third, it is alleged that she wounded Annis with a knife, thereby committing aggravated assault contrary to section 268 of the Criminal Code.
[5] Finally, by possessing a weapon, she allegedly breached her probation order dated April 13, 2015, contrary to subsection 733.1(1) of the Criminal Code. The probation Order is admitted, a true copy of which was filed as an Exhibit.
The Background
[6] At the time of the alleged offences, Malual and Annis were living together with Annis’ four young children. They occupied the basement of a house in Brampton.
[7] Upstairs, Ms. Vanessa Ebonka (“Ebonka”) and her children resided.
[8] During the evening on August 13th, Annis went out to a local bar. Malual went to find him. There was some sort of altercation outside the bar that involved Malual throwing her engagement ring that had been given to her by Annis.
[9] Malual is in her twenties. Annis is in his thirties. Ebonka is in her forties.
[10] When Annis returned home from the bar, he asked Ebonka to not let Malual back in.
[11] Not long after Annis arrived, Ebonka heard a commotion downstairs. She went to investigate, along with her son.
[12] The precise details of what Ebonka witnessed are in dispute, however, the following items are not controversial. Ebonka saw an altercation downstairs between Annis and Malual. It was both verbal and physical. It included Malual breaking at least one picture frame and hitting Annis over the head with frying pans. It escalated to the point where Ebonka retreated upstairs to call 9-1-1, the recording of which was played in Court during the trial.
[13] While on the telephone, Ebonka heard Annis say some things about a knife and having been stabbed. She also saw Annis bleeding from his hand.
[14] Ebonka did not see the start of the altercation downstairs. And she did not see what was happening when she was on the telephone with emergency services, including the alleged stabbing.
The Issue
[15] The principal issue is self-defence. That relates to the charges of common assault and aggravated assault. Whether the knife wounds to Annis were accidental is also a live issue.
[16] In Canada, a person is not guilty of an offence if the following three things are present: (i) they believe on reasonable grounds that force or a threat of force is being used/made against them, and (ii) they commit an act to defend or protect themselves from that use or threat of force, and (iii) the act committed is reasonable in the circumstances. Subsection 34(1) of the Criminal Code.
[17] Subsection 34(2) sets out some factors that the Court shall consider in determining the reasonableness of the act committed.
[18] Of course, I remind myself that Malual does not have to prove that she acted in self-defence. The burden is on the Crown to prove, beyond a reasonable doubt, that she did not.
[19] Further, it is not up to Malual to prove that the wounds to Annis were accidental. The Crown must prove both the mens rea and the actus reus components of the assault charges.
Basic Legal Principles
[20] Malual is presumed to be innocent of each and every charge that she is facing. She has no burden of proof. That rests exclusively with the Crown to establish, beyond a reasonable doubt, all of the essential elements of each charge.
[21] As this case involves multiple counts, it is important to remember that each charge must be assessed individually. The verdicts do not have to be the same across the various counts.
II. Analysis
[22] This was a short trial – three days, including final submissions by counsel.
[23] For the prosecution, I heard from Ebonka, Annis, Officer Brian Oldfield (“Oldfield”), and Officer Christopher Robinson (“Robinson”).
[24] The Defence called no evidence.
[25] To round out a summary of the evidence, beyond what is outlined above in these Reasons, the following is important.
[26] Parts of Ebonka’s evidence, if accepted by this Court, would support that Malual assaulted Annis in the basement; for example, Ebonka testified that she saw Malual hitting Annis, punching him, being on his back, smash a small frying pan over Annis’ head, and hit Annis over the head with a larger frying pan.
[27] Note that Malual is not charged with assault with a weapon.
[28] Further, parts of Ebonka’s evidence, if accepted by this Court, would support that Malual possessed a weapon, for example the frying pans, which fact is relevant to the breach of probation charge.
[29] Note that the said charge does not specify in its wording the weapon in question.
[30] In addition, parts of Ebonka’s evidence, if accepted by this Court, would support the mischief charge in that she testified that she saw Malual throw a picture frame at Annis, which hit him and broke.
[31] Whether parts of Ebonka’s evidence are relevant, circumstantially, to the aggravated assault charge, such as what she testified that she heard Annis say when she was on the telephone with 9-1-1, is open for debate.
[32] Oldfield responded to the residence of Annis and Malual just after 2:00 a.m. on August 14th. There was a lot of blood in the basement, an overturned couch, a pot and a pan on the floor, a smashed picture frame on the floor and a knife on the floor in two parts – a black handle and a silver blade.
[33] Those observations are relevant to all of the charges.
[34] Annis was taken to the hospital by ambulance.
[35] There, he gave a written statement to Robinson. It was not sworn but was reviewed and signed by Annis. He was intoxicated at the time, sad or upset, emotional and angry. Robinson observed bruising to Annis’ right bicep, a puncture wound on his right hip, and a gash on the back of his left hand.
[36] That evidence is relevant to the reliability of what Annis told Robinson in the police statement and relevant to the assault charges.
[37] According to Robinson, count 1, the simple assault charge, arises from the altercation between Annis and Malual that occurred outside the bar. If that is true, then the evidence of Ebonka and Oldfield become irrelevant on count 1.
[38] There is no question that Annis was wounded. The injuries described in the Statement of Agreed Facts, filed as an Exhibit, bear that out. Suturing to his hand was required, followed by plastic surgery and physiotherapy.
[39] Some special commentary is reserved for the evidence of Annis.
[40] He was a reluctant witness for the prosecution. He had to be cross-examined on his written statement to Robinson, which application under subsection 9(2) of the Canada Evidence Act was granted.
[41] Annis testified in direct examination that he drank a ton (my word) of alcohol on the night in question – as many as sixteen beers, plus two shots of tequila, plus possibly some marihuana. He stated that “a lot of the evening is hard for me to remember because of how much I drank”.
[42] Outside the bar, in direct examination, Annis described wrestling with Malual. She initiated the physical contact. She swung at him and “probably” hit his head once or twice.
[43] That evidence is relevant to the simple assault charge.
[44] Later, at home, in direct examination, Annis described Malual breaking a picture frame on the ground. He “may” have been hit with a frying pan. It broke. It “probably would have” hit his head or his arm. She grabbed a knife. He clumsily tried to disarm her by moving towards her and reaching for the knife. His left hand got injured. They wrestled on the ground. He retrieved the knife and snapped it in two. Exactly how his hand got cut, he stated that he does not know. Same with the small puncture wound to his right thigh.
[45] That evidence is relevant to the mischief charge, the breach of probation for possession of a weapon, whether the frying pan and/or the knife, and the aggravated assault charge. It could also be relevant to count 1 but not if that charge relates to what happened outside the bar.
[46] In direct examination, Annis testified that he viewed the knife being held by Malual as a “scare tactic”. He did not think that it would be used in any way. That is relevant to the aggravated assault charge.
[47] Annis was very reluctant to review his statement to the police. He stated that he already had done so, several times. Relevant to the statement’s reliability, Annis testified that he was highly intoxicated when he gave that statement. He may have exaggerated things and/or got things wrong when he gave that statement to Robinson.
[48] Annis reiterated that he was not trying to help Malual at trial but merely trying to be honest with the Court.
[49] “I remember flashes of what happened”, he stated at trial.
[50] In cross-examination by the Crown pursuant to subsection 9(2) of the Canada Evidence Act, Annis stated that there was “some contact” with his face outside the bar. He does not know if it was a punch. Further, when his hand was cut, there was some sort of downward motion of the knife.
[51] That evidence is relevant to both of the assault charges.
[52] In cross-examination at large by Defence counsel, Annis’ evidence became even more unclear than it already was.
[53] Outside the bar, on this version of Annis’ account, Malual was moving her arms and hands around a lot while arguing, something she typically does. It is possible that the initial contact that she made with Annis was from that and not by way of some punch or hit.
[54] That evidence is relevant to count 1.
[55] “My memory is really sketchy”, Annis repeated.
[56] As for the damage to the pictures, they belonged to both Annis and Malual. That is relevant to the mischief charge.
[57] In terms of the physical fight in the basement after the bar, contact was initiated by Annis. He grabbed Malual’s wrist and pulled her towards the door to get her out.
[58] After whatever happened with the frying pan occurred, he “straight-armed” Malual. He held her against the wall. Her naked upper body was exposed because her shirt had ripped. He released her. She picked up a nearby knife and stood there. He “charged” at her and tried to grab the knife. There may have been some kind of downward motion with the knife. Or maybe his hand was cut when he tried to grab the knife or when they went to the ground and were wrestling. The wound to his thigh happened when they were wrestling on the ground, and the cut to his hand may have occurred then, too.
[59] That evidence is relevant to the breach of probation charge for possession of a weapon (the knife) and the aggravated assault charge, more specifically, the issues of self-defence and accident.
Findings
[60] I accept the evidence of Oldfield and Robinson. I think that this case was handled well by the police.
[61] I believe Ebonka. I reject the Defence arguments that Ebonka’s evidence suffers from significant gaps in her memory or material inconsistencies.
[62] For example, her not remembering the couch being turned over is, in my view, understandable. She was focussing on the physical actions of the two combatants and the welfare of the children in the house.
[63] The alleged inconsistencies pointed to were adequately explained by Ebonka, in my view. For instance, she did not mention at the preliminary inquiry that she saw Malual biting or scratching at Annis because she was not specifically asked about those and simply forgot to include them in her recital of what happened downstairs.
[64] Annis’ evidence cannot be trusted. I place no reliance on it in terms of what happened outside the bar and later at the residence.
[65] There are four major reasons as to why Annis’ evidence is essentially useless.
[66] First, he was very drunk – at the bar, later at the residence and at the hospital when he gave his police statement. His drunkenness adversely affects the reliability of his accounts, varying as they were, of what happened.
[67] Second, his memory of the material events is terrible. Whether the Court accepts one expression, like “sketchy”, or another, like “flashes”, the fact remains that he is not a reliable reporter of anything that occurred after he left the residence for the bar down the street.
[68] Third, his evidence was replete with uncertainties. I lost count of how many times he said things like “may have” or “probably”. The vagueness of his testimony would be difficult for any witness to surpass.
[69] Fourth and finally, he was a highly incredible witness. He changed his story in the witness box so many times that it was hard to keep up with the running account.
[70] Outside the bar, his story went from Malual initiating the physical contact with a swing at him, to there being some form of physical contact between the two of them but maybe not a punch, to Malual flailing her arms and hands around while arguing and possibly making incidental contact with him.
[71] In terms of the cut to his hand, his story went from him not knowing how it happened, to it happening as a result of some sort of downward motion of the knife while it was being held by Malual, and then back to “who knows” – maybe it happened when he lunged for the knife as they were still standing, or maybe due to some downward motion of the knife, or maybe while they were wrestling on the ground.
[72] About the only thing that he was consistent on is that he does not know how the wound to his thigh occurred – probably while they were wrestling on the ground.
[73] There being no evidence of what happened outside the bar except for that of Annis, the accused must be acquitted on count 1. I will not disturb the concession made by the police and the prosecution that the simple assault charge does not relate to anything that happened later at the residence.
[74] Despite Ms. Prihar’s very able submissions, the accused must be acquitted on count 3 as well, the aggravated assault.
[75] There is no other direct evidence of how Annis’ hand was cut except for Annis’ testimony, which cannot be trusted to any degree.
[76] I say “direct evidence” because other circumstantial evidence must also be considered. For example, we know that Annis was wounded. We know that there was a knife found in two pieces. We know that there was a lot of blood. We know that Ebonka heard Annis say things that could lead to the inference that he was stabbed with the knife by Malual. We know that Ebonka heard Malual say something like “I’m going to jail anyways” and then immediately leave the residence.
[77] There are other reasonable inferences that could be drawn, however. For example, it could be that Annis was wounded by accident. When he charged at Malual and reached for the knife, it cut his hand. The wound to the thigh occurred while the two of them were wrestling on the ground.
[78] In those circumstances, there was no criminal intent on the part of Malual.
[79] Why did Annis say the things that Ebonka heard while she was talking to 9-1-1? Because she really did have a knife, and because he really did get stabbed with it, but in the sense of having been cut with it as opposed to an allegation that Malual had deliberately motioned the knife to effect the injuries that he sustained.
[80] I just do not know how the wounds occurred.
[81] I really should just say “wound” because the Crown does not invite a finding of guilt on count 3 based on the puncture to Annis’ thigh.
[82] Ms. Prihar made a powerful argument about the value of the 9-1-1 recording, combined with the evidence of Ebonka, and taking into account the post-offence conduct evidence.
[83] Mr. Prihar’s submissions were eloquently put and made this case closer than what it would have otherwise been.
[84] On the latter issue of what Malual said and did after Annis was injured, there is no question that after-the-fact conduct is a form of circumstantial evidence of guilt, and its relevance and probative value must be assessed very carefully so as not to fall victim of using it inappropriately. R. v. White, 2011 SCC 13, [2011] S.C.J. No. 13, at paragraphs 22 and 23.
[85] I agree with Ms. Prihar that it appears that Malual did not hesitate much before leaving the residence once Annis was injured.
[86] I also agree with Ms. Prihar that common sense, in addition to the comments of the Court in White, supra, suggests that an accidental injury to Annis may have caused Malual to stay as opposed to leaving and saying that she is going to jail.
[87] But, again, I think that there are other alternate explanations for what Malual said and did, reasonable ones. For instance, she knew that the police were being called because Ebonka had warned them of that in advance, and she may have been worried that she would automatically be blamed because of the prior incident in January 2015.
[88] The after-the-fact conduct evidence does not alleviate my reasonable doubt as to whether Malual intended to assault Annis.
[89] Ms. Prihar, quite rightly, stresses the importance of the timing of the events. I accept that, while Ebonka was on the telephone with 9-1-1, only seconds elapsed between the time that Annis was heard saying that Malual had a knife and when he was heard saying that he had been stabbed.
[90] Where I disagree with the Crown is that the said short time interval negates self-defence or accident. It would have taken only a few seconds for Annis to have charged at Malual and received the cut to his hand.
[91] One final submission by the Crown needs to be addressed. It is argued that Ebonka’s evidence supports that Malual was the aggressor throughout the altercation in the basement, and thus, it makes more sense that the cut to Annis’ hand was intentional and not self-defence.
[92] Respectfully, I disagree that Ebonka’s evidence can fairly be characterized that way. She did not see how the incident downstairs began. It could reasonably have been started by Annis. She also acknowledged in her evidence that Annis was being aggressive as well, for example, by violently throwing Malual up into the air and onto the couch (she agreed with that description in cross-examination).
[93] On the mischief charge, Ms. Prihar was professional enough to invite an acquittal on that count because of Annis’ evidence about Malual having an ownership interest in the property that was damaged. That acquittal is entered.
[94] That leaves just count 4 – the breach of probation for possessing a weapon.
[95] Again, Mr. Prihar was reasonable in her submissions in confining that charge to the knife and excluding, for example, the frying pans.
[96] I am not satisfied beyond a reasonable doubt that Malual did not pick up that knife to defend herself against something that Annis did after Ebonka went upstairs. If that is why she grabbed the knife, then her possession of it was with a reasonable excuse and, hence, not in violation of her probation terms.
[97] The accused must be found not guilty on count 4 as well.
III. Conclusion
[98] For the above reasons, I find Malual not guilty on all counts.
IV. Reasons for Decision on the Crown’s Prior Discreditable Conduct Application
[99] Just before closing its case at trial, the prosecution brought a prior discreditable conduct Application. It was well argued by both counsel. Ms. Prihar’s materials were particularly helpful.
[100] The Application was dismissed, with reasons to follow. These are those reasons.
[101] The Crown sought to admit as part of its case a transcript of a guilty plea entered by Malual in the Ontario Court of Justice on March 9, 2015. On that date, she pleaded guilty and was found guilty of assault with a weapon contrary to subsection 267(a) of the Criminal Code. The victim was Annis.
[102] The Defence opposed the Crown’s Application.
[103] The transcript reveals that, on January 31, 2015, at her home with Annis, there was an argument between Malual and Annis. Malual was intoxicated. She picked up a plastic toy and threw it at Annis. It hit him in the head, causing a laceration and bleeding. Tenants from upstairs intervened. Malual tried to go at Annis with a knife sharpener but was restrained.
[104] There was no dispute about the law. Both sides agreed that the Crown must demonstrate on balance that the probative value of the evidence outweighs its prejudicial effect. R. v. Batte, [2000] O.J. No. 2184 (C.A.), at paragraph 90.
[105] Some of the factors that may be considered are the same ones that are often discussed in the context of similar act applications – proximity in time and location, degree of similarity between the prior act(s) and the charged conduct, number of prior occurrences, circumstances surrounding the prior acts, distinctive features, intervening events, and any other factor. R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57, at paragraph 82.
[106] Here, there was significant prejudice to the Defence.
[107] The Crown wanted to adduce this prior evidence as being relevant to who the aggressor was on August 14th – Malual or Annis. Related to that are the issues of self-defence and the alleged propensity of Malual to assault Annis.
[108] The problem is that the Defence did not attack Annis’ criminal antecedents and propensity for violence, both of which are arguably more significant than anything that the March 9, 2015 transcript shows about Malual.
[109] In fact, in July 2013, Annis experienced a very similar incident with his then partner as compared to what occurred between him and Malual in August 2015. There was an argument between Annis and his then partner, at their residence. Alcohol was involved. It became physical at the instance of Annis. Annis was charged with assault. He admitted to the police that he had hit his wife. He was found guilty.
[110] Besides that, Annis has a history of violence: convictions for a weapons offence in 2000, the assault in 2013, and a criminal harassment in 2013.
[111] Out of basic fairness, if this Court were to have admitted into evidence the March 9, 2015 transcript, some or all of the above would have had to have been considered as well. Of course, none of it was considered in the Judgment because I was only aware of Annis’ criminal history through the Exhibits filed by the Defence on the Crown’s Application.
[112] On probative value, it is limited.
[113] First, I already knew without the Application that Malual had assaulted Annis in the past, with a plastic toy. That came out during the evidence at trial of Annis. There was no reason, in my view, to then admit into evidence the specific facts of that prior assault.
[114] Second, although there is proximity in time and location between what happened in January 2015 and what occurred in August of that same year, and some other similarities involving alcohol, a verbal argument, the upstairs tenants and household objects being used by Malual as weapons, the fact remains that other considerations point away from the granting of the Application.
[115] The two most important of those are (i) that the transcript only goes to a single prior occurrence, not a pattern of any sort, and (ii) nothing really distinctive about either incident.
[116] For those reasons, along with the fact that Annis had already testified at trial, in cross-examination, that he, not Malual, was the initial physical aggressor inside the residence after the bar, I was not satisfied that the probative value of the proferred evidence outweighed its prejudicial effect, and hence, the Crown’s Application was dismissed.
Conlan J.