R. v. Seifu

2005 BCSC 1755internet R. v. Gerum Yeferu Seifu

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Seifu 2005 BCSC 1755 Date: 20051207 Docket: 22876 Registry: Vancouver Regina v. Gerum Yeferu Seifu Before: The Honourable Madam Justice Stromberg-Stein Oral Reasons for Judgment December 7, 2005 Counsel for the Crown: A.R. De Smet Counsel for the Defendant: F. Lépine Place of Hearing: Vancouver, B.C. [1] THE COURT: Gerum Yeferu Seifu is charged with sexual assault of R.N. The allegations arise from events on March 3 and 4, 2004, in Vancouver. The issue is credibility. [2] The evidence establishes that prior to the alleged sexual assault Mr. Seifu and R.N. were friendly and were engaged in a fraudulent cheque scheme. On March 3, R.N. called Mr. Seifu requesting bus fare to her home in Chilliwack; her call and request were not uncommon. Mr. Seifu agreed to meet her at the American Hotel to give her bus fare. [3] Prior to meeting Mr. Seifu, R.N. had about four glasses of beer at the Balmoral Hotel. R.N. missed the 8:05 p.m. bus to Chilliwack. She claims Mr. Seifu did not arrive at the American Hotel until after it had already left. Mr. Seifu says he arrived well before the bus was scheduled to depart. [4] R.N. planned to take the 12:05 bus. At the American Hotel she continued to drink beer and shooters bought for her by Mr. Seifu. She visited with friends, including Mr. Seifu, who she saw was romantically engaged with Donna

(phonetic), but she paid no mind. As well she visited with a man called Toby (phonetic) or Wayne (phonetic). [5] Mr. Seifu had his eye on the clock and told R.N. it was time to catch her bus. R.N. left with Toby, but then returned to tell Mr. Seifu she had to retrieve her belongings from his car. Mr. Seifu ended up driving her and Toby to the bus depot and dropping them off. Mr. Seifu returned to the American Hotel only to find that Donna had left. R.N. missed her bus, and she and Toby returned to the hotel meeting up again with Mr. Seifu. The next bus was the next morning. [6] Mr. Seifu laid out R.N.'s options to take $10 from him to add to the $20 bus fare to get a room for the night at a hotel with Toby; to walk around the streets all night with Toby, or to sleep on Mr. Seifu's couch. R.N. chose to sleep on Mr. Seifu's couch. [7] When they left the hotel, R.N. was in good spirits. She had no physical injuries and had no difficulty walking. They went to Mr. Seifu's apartment. At this point, their versions of events are diametrically opposed. [8] R.N. says that Mr. Seifu told her to go to sleep in his bedroom, not on the couch, because his son was there and he did not want his son to see any girls in his apartment. She went into his bedroom, took off her shoes and lay on the bed. Not long after Mr. Seifu came into the room naked. He told her to take her clothes off. She told

him she could not do anything because she was on her monthly. He grabbed her head and made her perform oral sex on him. She told him she did not want to. His demeanour was very angry. She could tell this from his facial expression and from the rough way he was handling her and swearing at her. [9] He was angry at her for not taking her clothes off. She told him she could not do anything because it was that time of the month. He said, "Well, you can do this," and turned her on her belly, holding her wrists over her head, and forced himself into her anus. She was crying and trying to struggle. If she was too loud, he told her to be quiet and muffled her sounds in a pillow. He eventually flipped her over and stuck his fingers in her anus. He engaged her in vaginal intercourse and again in anal intercourse. She was crying and kept saying, "No. It hurts. I can't do it. Please stop". [10] He finally got off her and wiped himself. She did not know if he used a condom, but there was a wrapper on the floor. She did not know if he ejaculated. He mimicked her while she cried. She did not consent to any sexual activity with Mr. Seifu. She got dressed. She hurt all over her body. He went and slept on the couch. [11] In the morning, she took the phone from the living room and called a number of friends to tell them that she loved them and to ask them to pray for her. She did not call the

police, she said, because she did not want to get anyone in trouble for the cheque fraud scheme. [12] She claimed she was scared and was locked in the bedroom when some people came to the apartment. When these people left, Mr. Seifu asked her how she was feeling. She responded she was hurting so much she wanted to drink all his alcohol. He told her to go ahead. She told him he was an asshole. [13] They left the apartment at about ten o'clock in the morning. She went to church and eventually met up with Toby, who took her to the Health Contact Centre. From there she went to Vancouver General Hospital where she was examined by a doctor. [14] At some point, she called Mr. Seifu to tell him that she had left her wallet in his apartment and to arrange to meet him to pick it up, and to tell him that she had found two men who were interested in participating in the cheque fraud scheme. [15] Mr. Seifu's version is that R.N. was his friend, like his sister. He tried to make sure that she got her bus by giving her money and taking her to the bus depot. He tried to get Toby to take care of her that night. The option came down to her sleeping on his couch in his apartment. He told her not to expect anything else and she agreed. Apparently there was some romantic history between the two of them. [16] As they entered the apartment, she swore at him, called him a son of a bitch and a dog. She

accused him of kissing Donna in front of her. She tried to hit him. He told her to be quiet because his son was sleeping. He decided to change the sleeping plans and have her sleep in his room for two reasons: one, she was too big for the couch; and two, because he did not want to disrespect his 14-year-old son who would see a woman sleeping on the couch when his son left for school. [17] He showed R.N. to his room and told her goodnight. She told him to fuck off. He undressed in the living room and went to sleep on the couch in his boxers. He awoke to find his boxers pulled down and a naked R.N. with his penis in either her hand or her mouth. He pushed her away and demanded to know what she was doing. She was loud, yelling what was wrong with her. He tried to be polite and told her he cannot be active right now, they are both drunk and, "We'll talk about it in the morning". He reassured her she was beautiful. He was trying to make her calm. He escorted her to the bedroom where she passed out on the bed. [18] She was up first in the morning and she took the cordless phone to the bedroom to make calls. He was visited by two pest control people. She was lying on the bed reading a book at the time. He denied locking her in his room. [19] When they left his apartment, he offered to drive her to the bus, but she refused and said she was going to church. She was angry. He told her to

lose his phone number and do not call him again. She told him, "I know. It was too much". She gave him a hug. He told her to lose his phone number because she did not understand his point of view that he was not ready for a relationship. She kept coming at him and she had not even given him one account for his fraud scheme. They left on angry terms. He waited to be angry until he was outside his house so there would be no problems inside his house. [20] At 12:00 or 12:30, she called and asked about her wallet in his apartment and said that she had two people for his cheque fraud scheme. He was not surprised to receive this call. He agreed to bring her the wallet around 2:30 or 3:00. He told her to use some of the $20 for lunch and he would replace it when he saw her. He did not know when the condom wrappers that were found under the bed had been placed there or were used. He described being sexually active and has women over every two days. [21] In cross-examination, he agreed that R.N. had stayed at his house before and he agreed it was not unusual for her to call him or ask for bus fare. He has given her bus fare before and has helped her out before. He gave her $20 and bought her drinks at the bar. He talked to her. He agreed he was romantically interested in Donna. He agreed that R.N. bought Donna a drink, but suggested that R.N. did not like Donna. He suggested R.N. left

the bar for at least 45 minutes with Toby. He agreed he was drinking a lot of beer and had one shooter, but said he was not drunk. [22] He suggested since the time he had spent the night with R.N. she has called him every night and asked to see him, but he made excuses and when she was drunk he did not see her. He said that he knows she is in love with him, that she calls him every single day and wants to see him; he does not want to see her and gives excuses. [23] He keeps her close for financial reasons related to the cheque fraud scheme. However, this particular night he made an exception and allowed her to stay over, although she had been drinking. He offered her a place to stay at his house notwithstanding the fact his son was home and having a female in the home would disrespect his son. In return, after giving her money, buying her drinks, and offering her a place to stay, she swore at him, yelled and screamed and tried to smack him, and sexually approached him while he slept. [24] Mr. Seifu agreed that he was with R.N. from 8:30 p.m. to about 10:00 a.m. the next morning. At the bar there was nothing physically wrong with her. While he did not know if she was bruised, he did not see any bruises or injuries; she had no difficulty walking and she was not upset or crying. [25] R.N. was seen by Dr. Comay at Vancouver General Hospital at 15:45 hours. Dr. Comay described her

demeanour as crying, shaking, and complaining of being in pain. On examination, the doctor noted her scalp was tender on the right side, she had two red marks on the right side of her neck, she had a dark blue bruise on her right shoulder, she had a red bruise on her upper right arm, and she had red bruises on each of her shins. The colour of the bruises indicated they could be fresh. R.N. complained of pain over the left hip area. She had difficulty sitting due to pain in the anal area. [26] Examination of the genital area revealed redness and an abraded area of the inner labia. The cause could be any frictive force, including forced penetration of the vagina. Examination of the anus revealed a one centimetre tear that could be caused by forced penetration of the anus. This could also be caused by constipation, a skin disease, or other frictive force. None of these findings were conclusive evidence of sexual assault and conceivably could be caused by rough sex. There was no evidence of motile sperm in the vaginal secretions. [27] R.N. accompanied police to Mr. Seifu's apartment complex. While in the parking lot, R.N. saw Mr. Seifu walk out the door. She said she was really scared and slumped into the seat of the police car so he would not see her. Detective Constable Scorrar described how they were in the parking lot of the apartment complex when she heard R.N. scream loudly

and point to Mr. Seifu, who was walking across the parking lot, and say, "That's him". The officer said R.N. was terrified, visibly shaken, trying to duck down as low as possible, and crying hysterically. [28] R.N.'s wallet was found in Mr. Seifu's bedroom under the bed cover, at the edge of the bed frame, on the floor. Two condom wrappers were found under the bed; other condoms were found on the shelf in Mr. Seifu's bedroom in open view. [29] There are certain general principles that govern every criminal trial. Every person charged with an offence is presumed to be innocent unless and until the Crown has proved his guilt beyond a reasonable doubt. Presumption of innocence lasts throughout the trial. That presumption only ceases to apply if, at the end of the case and on the whole of the evidence, the Crown has proved beyond a reasonable doubt, in this case, that Gerum Seifu is guilty of the crime charged of sexual assault. [30] Mr. Seifu does not have to present evidence or prove anything in this case; in particular, that he is innocent of the offence charged. From start to finish it is the Crown who must prove the guilt of Mr. Seifu beyond a reasonable doubt. Mr. Seifu must be found not guilty of the offence unless the Crown proves beyond a reasonable doubt that he is guilty of the offence of sexual assault. [31] The principle of proof beyond a reasonable doubt is an

essential part of the presumption of innocence. Reasonable doubt has been described as follows: a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that arises at the end of the case based not only on what the evidence tells you, but also on what the evidence does not tell you. It is not enough to believe that Mr. Seifu is probably or likely guilty. In those circumstances, he must be found not guilty because the Crown would have failed to prove his guilt beyond a reasonable doubt. [32] Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. However, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. [33] If, at the end of the case and after an assessment of all of the evidence, I am not sure that Mr. Seifu committed the offence, I must find him not guilty. If, at the end of the case, based on all of the evidence, I am sure that Mr. Seifu committed the offence, I must find him guilty. [34] Reasonable doubt applies to the credibility of witnesses. Although I have not referred to all of the evidence, I have carefully considered all of the evidence presented during the trial in order to decide how much or how

little of the testimony of any witness to believe or rely on. [35] I must consider the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. If I believe the testimony of Mr. Seifu that he did not commit the offence charged, I must find him not guilty. Even if I do not believe the testimony of Mr. Seifu but it leaves me with a reasonable doubt about his guilt or about an essential element of the offence charged, I must find him not guilty. If I do not know who to believe, it means I have a reasonable doubt and I must find Mr. Seifu not guilty. Even if the testimony of Mr. Seifu does not raise a reasonable doubt about his guilt or about an essential element of the offence charged, if, after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, then I must acquit. [36] I have carefully considered a number of points of concern raised by defence counsel. Mr. Seifu went out of his way to enable and to ensure that R.N. got on the bus home. He did not try to keep her in Vancouver. He offered her options other than staying at his apartment. R.N. had the opportunity to call police from Mr. Seifu's apartment; instead she called numerous friends. Her explanation that she was in a daze and that she was concerned for her friends involved in the fraud is somewhat odd at first glance until one considers the source. Further,

after an allegedly brutal sexual assault, R.N. called Mr. Seifu to get her wallet back and to tell him about two potential recruits to the cheque fraud scheme. [37] I have also considered that Mr. Seifu and R.N. were friends and both had financial reasons to remain on good terms with each other. Further, there is no evidence that the condom wrappers found under the bed were in any way related to this incident. [38] In this case, where credibility is very much an issue, the fact that both parties were involved in a cheque fraud scheme detracts from their credibility. [39] Mr. Seifu, I find, is not a credible witness. I reject his evidence as far-fetched and unbelievable. His evidence does not raise a reasonable doubt. His evidence is internally inconsistent as, on the one hand, he professes to believe that R.N. is in love with him, he gives her money for bus fare and buys her drinks, he offers her a place to stay, he claims she approaches him sexually while he is asleep; yet on the other hand, he is angry when she rejects his offer for a ride to the bus, and as they say goodbye he tells her to lose his phone number. This does not make sense, nor does the suggestion that he said this in anger because he was upset about R.N.'s sexual advances toward him. [40] His evidence does not ring true as to how he invited R.N. to sleep on his couch, yet at his apartment he decided she should

sleep in his bedroom because she is too big for the couch and it would disrespect his 14-year-old son to see a female sleeping on the couch. Despite being worried about disrespecting his son by the presence of a female on his couch, Mr. Seifu, while initially evasive, claimed ownership of numerous condoms lying in open view and admitted to being sexually active every other day. [41] The evidence I do accept proves beyond a reasonable doubt that R.N. was sexually assaulted by Mr. Seifu. While R.N. is a very emotional witness, at times excessively so, I find R.N. to be a credible witness. She is a simple person, not particularly sophisticated or worldly. She gave her evidence in a straightforward manner. [42] I accept the evidence of R.N. that Mr. Seifu sexually assaulted her as she described in her evidence. The most cogent evidence of sexual assault is the fact that R.N. and Mr. Seifu were alone from 12:30 a.m. until about 10:00 a.m. Before that they were in each other's company at the American Hotel off and on from about 8:30 p.m. [43] Mr. Seifu's evidence strengthens R.N.'s evidence. He agrees she was not injured before leaving the American Hotel. Mr. Seifu admitted at the American Hotel there was nothing physically wrong with R.N.. He did not see any bruises or injuries, she had no difficulty walking, and she was not upset or crying. [44] It is speculative to suggest that

something happened to R.N. after she left Mr. Seifu's apartment at 10:00 a.m. and before she sought medical attention, a suggestion that was never made to R.N. in any event. [45] Consistent with the encounter described by R.N. is physical confirmation of a sexual assault. The medical evidence of her injuries, abrasions to the labia, a superficial tear to the anus, and bruises and tenderness to various parts of her body from head to toe, are all consistent with a sexual assault. Also consistent with the traumatic event she described was R.N.'s demeanour at the hospital and her reaction and demeanour upon seeing Mr. Seifu in his parking lot. [46] Considering the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Seifu is guilty of sexual assault. "S.S. Stromberg-Stein, J." The Honourable Madam Justice S.S. Stromberg-Stein