PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Mullen, 2022 NSPC 21
Date: 20220613
Docket: 8555171
Registry: Kentville
Between:
Her Majesty the Queen
v.
Bradley Steven Mullen
Restriction on Publication: s.486.4
| Judge: |
The Honourable Judge Ronda van der Hoek, |
| Heard: |
June 8, 2022, in Kentville, Nova Scotia |
| Decision |
June 10, 2022 |
| Charge: |
271(1)(a) of the Criminal Code of Canada |
| Counsel: |
Keavin Gallant Finnerty for the Crown Self Represented Michael Curry appointed for cross-examine of the complainant |
Cases considered: Faryna v Chorny,1951 CanLII 252 (BCCA), [1952] 2 D.L.R. 354, R. v. W.(D.), 1991 CanLII 93 (SCC), R. v. N.M., 2019 NSCA 4 (CanLII).
The original text of this decision has been changed according to the erratum dated June 21, 2022.
By the Court:
Introduction
[1] This was a brief trial held within a month and a half of the alleged incident. Mr. Mullen is charged with one count of sexual assault arising from grabbing the complainant’s breasts while they shared drinks in a local park.
[2] Credibility is the central issue as all elements of the offence were contained in the complainant’s testimony and Mr. Mullen denies ever touching the complainant. In addition to the complainant and Mr. Mullen, the Court heard testimony from a passerby who responded to and comforted the complainant.
Decision:
[3] After carefully assessing the testimony of all three witnesses, the Court concludes the Crown did not discharge its burden to prove the offence beyond a reasonable doubt.
The Evidence and Findings of Fact:
[4] I do not propose to review the evidence in great detail. Suffice to say I listened carefully to the witnesses and took thorough notes. After hearing closing submissions, I took time to reflect upon them and considered all the issues raised in the cross examination of the complainant. Since Mr. Mullen testified, I applied a WD analysis in assessing his credibility.
[5] On April 21, 2022, the complainant and Mr. Mullen were in a local marsh park, sitting at a community picnic table, sharing alcoholic beverages purchased by the complainant. The two met only a few weeks earlier following an introduction by Mr. Mullen’s girlfriend. That is where the common evidence ends.
[7] The complainant testified in a straightforward, step-by-step manner appearing to provide a complete and truthful account of the incident. It cannot be overlooked that she was testifying about an incident that occurred only six short weeks ago. While she also provided a police statement the same day, she did not review it prior to trial.
[8] The only discrepancy the Court noted in her direct examination came when she listed the alcohol the two consumed as including two pints of vodka. Later in direct examination she clarified that they drank only one pint of the two pints and, following the assault, she noticed Mr. Mullen had left with the second pint. The Court was not overly concerned about this apparent slip of the tongue quickly corrected at her own initiative. The evidence of Mr. Mullen would support that he did, in fact, leave with the second pint.
[9] As with any witness, there were a few differences between the contents of her video recorded police statement and her testimony at trial. Those concerns are as follows:
(1) Dirt on her clothes:
[10] The complainant testified that Mr. Mullen grabbed her breasts while the two were seated at a picnic table. In her effort to get away from him she fell to the ground where he immediately and quickly held her in a bear hug from behind while the two were seated on the ground.
[11] Defence counsel pointed to an apparent lack of visible dirt on her pants in the video taped interview given that same day. The complainant explained that the dirt left on her pants was gone hours later when she provided the statement, and the pants were black.
[12] After viewing just enough of the video statement to assess how the complainant was dressed, the Court finds it was not possible to discern whether there was dirt on her dark pants due to the poor visual quality of the recording.
[13] The passerby testified that she attended the area of the picnic table in response to a crying complainant who had dirt on her black pants.
(2) Strikes with a Hairbrush:
[14] Mr. Mullen is not charged with assault, but a concern was raised about the complainant’s evidence about him striking her with a hairbrush during the later part of the alleged sexual assault. Asked if it was her evidence that Mr. Mullen struck her while the two were still seated at the picnic table or after she fell from the table, the complainant’s frank reply was, “I don’t remember [the] sequence of when hit, but it happened.” The question suggested the complainant may have said such at another time, but the Court does not recall it and the inconsistency, if any, was not established. If anything, it appeared the complainant was trying not to overstate her recollection of each moment of what was a fairly quick incident.
[15] That said, the details involving the hairbrush require consideration. The complainant testified that while on the ground, held there by Mr. Mullen’s legs and arms wrapped around her, he loosened his tight grip across her chest to reach for the hairbrush located on the picnic table. With his grip loosened, she tried to get away but was unsuccessful.
[16] While not raised, the Court had difficulty trying to picture how this action on the part of Mr. Mullen was achieved in those circumstances. For example, were the two seated near the picnic bench or the side without a bench. How could he reach over the bench or alternatively straight up to the tabletop to grab the brush from a seated position. It was pointed out that Mr. Mullen is quite tall and the complainant quite short, but that still did not render the imagining any easier.
[17] The Court is mindful that the whole situation lasted less than two minutes and the complainant is not expected to provide a perfect account of each second of what was a sudden grabbing of her breasts at the picnic table, described as lasting thirty seconds before she fell while trying to get away. The grabbing and holding on the ground she estimated lasted just over a minute and included Mr. Mullen grabbing and hitting her with the brush.
[18] Defence counsel challenged the complainant regarding her police statement wherein she reported being struck only once with the brush as compared to her testimony that she was struck multiple times. The complainant says if she told police once that was incorrect and maintained there were multiple strikes. She also testified that the strikes from the brush left a bruise on her thigh. There was no photographic evidence entered at trial.
[19] Not having heard the question-and-answer section of the statement addressing the strike(s), the Court is not in an optimal position to reach a conclusion as to difference if any. If she simply told police she was struck by the hairbrush, that does not rule out more than one strike, and at the same time is capable of being interpreted as a single strike.
(3) People in the area and the volume of the Complainant’s Protests:
[20] On cross-examination the complainant was asked if she said anything during the assault. She testified that she levelled expletives at Mr. Mullen but was not yelling because she was aware there were children from a day camp in the area and she did not want them to hear.
[21] Challenged with respect to not mentioning children on direct examination, she says she forgot about them but maintained there were day camp children in the area. Not much turns on this information as her testimony in that regard was later supported by the passerby who also noticed the children and their leaders in the park that day. Mr. Mullen testified that he also saw the children.
[22] It should come as no surprise that witnesses do not provide every detail in testimony or in police statements, and some information omitted can be classified as significant or insignificant. In this case the failure to mention the children did not affect her credibility nor her reliability.
[23] The complainant says she screamed loudly at one point, “Get the fuck away from me!”
[24] The passerby testified that the noise of wailing and crying alerted her to the complainant and they sat together for 45 minutes.
[25] The suggestion is, of course, that people should have heard the complainant yelling at Mr. Mullen if an assault actually occurred. But it is fair to say it is always difficult to discern what a witness means when she says “screamed.” Human experience establishes the word means different things to different people. It can range from a raised voice to a guttural cry. One can scream while at the same time not so loudly as to have nearby children hear, while at the same time raising the voice to a level to convey “Stop.” Ultimately the Court could make little of whether purported volume of protests impacted the complainant’s credibility in this large outdoor area.
[26] In assessing the complainant’s overall credibility and examining the consistencies and inconsistencies between direct and cross examination and the police statement, I find she was overall consistent, and any inconsistencies were fairly minor. She was candid, truthful, and balanced. The Court does not accept the defence position she raised a false allegation motivated by malice or a grudge regarding the alcohol. The evidence did not support such a conclusion. Overall, the complainant was reliable and credible.
[27] The analysis does not end with the complainant’s evidence, the Court must also consider the evidence of Mr. Mullen.
The Testimony of Mr. Mullen:
[28] Mr. Mullen represented himself at this trial and is best described as a communicative witness. He explained in great detail how he and the complainant ended up in the park. He recalled seeing her outside the local resource centre where he was completing a resume and 15 minutes later at a coffee shop where she offered him beer. Given the short passage of time between the date of the alleged offence and the date of trial, it was not surprising Mr. Mullen, who was arrested and incarcerated later that day, would recall the events of the day in such detail.
[29] Mr. Mullen also volunteered information not particularly flattering to himself such as the owner of the coffee shop telling him to leave after seeing Mr. Mullen transfer alcohol from a beer can into the store mug. He was also able to offer the brand name of the beer provided to him by the complainant, consumed at the coffee shop, and later at the marsh.
[30] One difference between the testimony of Mr. Mullen and the complainant was the time of day the two were in the marsh. Mr. Mullen and the passerby place it at late afternoon while the complainant placed it between 10 and 11 am.
[31] Mr. Mullen says he had been introduced to the complainant by his girlfriend. While drinking in the park, the complainant offered fairly detailed information about his girlfriend cheating on him with another friend. Mr. Mullen says he asked the complainant to accompany him to the library to charge his phone and locate his girlfriend to confirm the accuracy of the complainant’s report of infidelity. The complainant declined to join him.
[32] As Mr. Mullen readied to leave the park on his mission, the complainant grabbed his jacket and bag in an effort to search them for the second pint of vodka. The two argued and engaged in a tug of war with Mr. Mullen’s bag. The complainant then threatened to make a complaint to police saying, “If you leave, I will tell people you touched me. I’ve done it before and been successful.” Mr. Mullen says she threw herself on the ground in a child-like tantrum. He laughed, leveled an expletive, and left.
[33] It was not clear why Mr. Mullen thought it was okay to leave the park with the pint that he acknowledged was purchased by the complainant for sharing, but at the same time it makes some sense that doing so would lead to a problem between the two. Afterall, the complainant was not leaving with Mr. Mullen, she purchased the liquor, her phone was dead, and she is homeless.
[34] The Court finds Mr. Mullens’ testimony in harmony with the preponderance of the probabilities, reasonable in the circumstances at the relevant time and place (Faryna v. Chorny, 1951 CanLII 252 (BC CA)). That Court said as follows:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth
Level of intoxication:
[35] Mr. Mullen says that while he was drinking, he was certainly functional. The complainant was very drunk, and only after leaving the park and attending the library where he found mix and continued to drink, did his motor functioning degrade. He advised that he was later arrested for mischief at the library.
[36] Mr. Mullen testified that while in the park with the complainant, he communicated with the passerby, and she confirmed he did so. She says he was not overly intoxicated at the time and invited her to a rally. The passerby also testified that the complainant, who she sat with for 45 minutes, had consumed alcohol but was able to function and was not overly intoxicated. The passerby, it should be noted, is an employee of the municipality in the park that day as a function of her employment. She had never before encountered the complainant or Mr. Mullen. She was an uninterested observer who simply offered support to a stranger. That said, the Court wished it had heard more testimony about what she and the complainant talked about in the park and her role, if any, in the complainant’s decision to go to police. Perhaps that would have been explored if Mr. Mullen had counsel at the trial.
[37] Returning to the impact of alcohol, the Court cannot conclude that its consumption affected either witness to the point where their testimony was rendered unreliable.
[38] Finally, Mr. Mullen described himself as morally outraged to be charged with such an offence. He says he is incensed. When presented with his criminal record on cross examination, he readily accepted it and added that when he commits a crime, he acknowledges it and pleads guilty. He pointed out that he does not have a record for committing sexual assaults and did not commit one involving the complainant. On cross-examination he reconfirmed that it is outside his moral code to commit sexual assault.
The Law:
[39] The onus in a criminal trial rests with the Crown to prove the guilt of the defendant beyond a reasonable doubt. Mr. Mullen benefits from the presumption of innocence and the burden never shifts to Mr. Mullen asking him to prove he did not commit the offence.
[40] A reasonable doubt is neither frivolous nor imaginary. It must be based on reason and common sense and logically derive from the evidence adduced at the trial. Nothing Mr. Mullen says or does in the courtroom, short of testifying, can be used in assessing his credibility. After considering all of the admissible evidence, the Court will determine whether the Crown proved its case, and that conclusion is not reached until closing submissions have been delivered and the Court has reflected upon them.
[41] Mr. Mullen’s testimony is assessed using the test in R. v. W.(D.), 1991 CanLII 93 (SCC) as clarified in, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment”. Justice Paciocco explained the test using five propositions:
(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;
(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;
(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;
(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.
Conclusion:
[42] Having reviewed Mr. Mullen’s testimony, I cannot say that I can reject it. The parties knew each other for a few short weeks, his testimony explained the presence of dirt on her clothes. He says a threat was leveled against him and that makes sense given he was leaving the park with the complainant’s alcohol en route to determine whether her report of infidelity on the part of his partner was true. The whole situation appeared chaotic and unpredictable. Mr. Mullen was a good witness. There were no apparent inconsistencies in his testimony. He was, quite simply, consistent, unshaken, and entirely persuasive. His account of events made sense in the circumstances. He readily acknowledged his failings and impressed the Court as reliable and truthful in his account of what occurred just a few weeks ago.
[43] Overall, his evidence provided sufficient detail and had a ring of truth. While Mr. Mullen was verbose in the courtroom during the trial, the Court reminds itself that it cannot assess his credibility based on what he does or says in the courtroom, unless he addresses same in his testimony. (See: R. v. N.M., 2019 NSCA 4 (CanLII)). He testified admitting less than flattering information about himself including an arrest later that day. Being arrested later that day, I find, did not affect his credibility, and actually supported it. It made sense that consumption of a pint after leaving the park would land him in the difficulty he then faced. Conviction for a subsequent crime did not, on these facts, impact his credibility with regard to earlier events.
[44] Only after considering all of the evidence in this short trial, does the Court conclude its level of confidence in the complainant’s testimony is comparable to the level of confidence in Mr. Mullen’s own. As a result, given I cannot reject Mr. Mullen’s evidence, there is a reasonable doubt. The Crown has not proven the case beyond a reasonable doubt.
[45] Mr. Mullen you are not guilty.
[46] Judgement accordingly
Ronda van der Hoek, JPC
PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Mullen, 2022 NSPC 21
Date: 20220613
Docket: 8555171
Registry: Kentville
Between:
Her Majesty the Queen
v.
Bradley Steven Mullen
Erratum
| Judge: |
The Honourable Judge Ronda van der Hoek, |
| Heard: |
June 8, 2022, in Kentville, Nova Scotia |
| Decision |
June 10, 2022 |
| Charge: |
271(1)(a) of the Criminal Code of Canada |
| Counsel: |
Keavin Gallant Finnerty for the Crown Self Represented Michael Curry appointed for cross-examine of the Complainant |
|
Erratum Date: |
June 21, 2022 |
Paragraph 14 – inserted “was”
Paragraph 17 – inserted comma after “table”
Paragraph 20 – inserted “was asked” and “she”
Paragraph 22 – corrected “ever” to “every”, inserted “the” and removed “the”
Paragraph 25 – added quotation marks to “Stop”
Paragraph 36 – removed ‘s from Mullen’s
Paragraph 41 – removed “to the”