HTMQ v. Dixon

2002 BCSC 575 Citation: HTMQ v. Dixon Date: 20020314 2002 BCSC 575 Docket: CC011651 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Mr. Justice Lysyk March 14, 2002 HER MAJESTY THE QUEEN AGAINST WARREN IAN DIXON Counsel for Crown M. McGivern Counsel for Defendant D.P. Lawrence Place and Date of Hearing: Vancouver, B.C. March 14, 2002 [1] THE COURT: There are two counts in the Indictment and they relate to an occurrence stated to have happened on July 18, 2001, at Sechelt, British Columbia. [2] Count 1 alleges that the accused stole money from Wendy Hugo, while armed with an offensive weapon, contrary to s. 344(b) of the Criminal Code. This type of robbery is described in s. 343(d) of the Code. Count 1 specifies the offensive weapon as being a knife. [3] Count 2 alleges that the accused, with intent to commit an indictable offence, did have his face masked, contrary to s. 351(2) of the Code. [4] As to the essential elements of these two offences, the defence does not contest findings that, on the date and at the place mentioned in the Indictment, there was a robbery and that the perpetrator was masked at the time of the robbery. [5] The single issue in this case, therefore, is that of identification. Has the Crown proved beyond a reasonable doubt that the accused was the robber? [6] The Crown called three witnesses: Ms. Wendy Hugo, Ms. Samantha Dixon and Constable Ken Kuan of the R.C.M. Police. The defence did not call evidence. [7] Wendy Hugo was employed as a cashier in Family Mart, the convenience store where the robbery occurred. Ms. Hugo testified that on the date in question she was working her usual shift, which ran from 3:30 p.m. to 11:30 p.m. She testified that a little after 9:00 p.m. her friend, Samantha Dixon, came into the store. As a result of what the latter told her, Ms. Hugo went out into the street to observe a person a short distance away from the store entrance. The storefront is on a walkway and the individual she saw was in that walkway, to the left as one leaves the store. [8] In her examination in chief, Ms. Hugo said that she had no other purpose in going outside apart from wishing to observe the individual out there. She said she was outside of the store for one or two minutes, during which she pretended to be sweeping the sidewalk while she was "checking out" that person. She testified that he was leaning against the doorway of a store in the adjoining building. That store is called Galiano Market and she stated that neither it nor any other premises on this side of the street were open at the time. She stated that she got within 20 feet of this individual, that she felt that he knew that she was looking at him, and that at one point they made very brief eye contact. [9] Ms. Hugo described the fluorescent and other artificial lighting along the walkway. She also said that at this time, about 9:10 p.m. or 9:15 p.m., the sun had just gone down and it had been a nice day, so there was natural lighting, as well. [10] Describing her observations of the individual seated in the walkway, she described him as being a Native person, with skin medium brown in colour, 20 to 21 years of age, about five-foot-five-inches tall, with a slight build and about 120 pounds in weight. She described his eyes as being "very dark" and "unemotional." She described his hair as dark brown in colour, but she could not recall its texture or length or whether he had facial hair. She described his clothing as resembling a jogging or tracksuit that was black in colour. [11] Ms. Hugo said that after returning into the store, and after a couple of customers and Samantha Dixon left, she went to lock the backdoor. She stated that a surveillance camera covered the area between the front door and the alarm system, and the latter was situated some six to eight feet short of the backdoor. She stated that just after she had placed the metal bars across the backdoor, and while she was, therefore, out of camera range, she sensed someone behind her. That person grabbed her by the left arm and, she testified, pressed a knife against her ribs. She described it as a fish-filleting knife about six to eight inches in length. She said that this individual had wrapped a shirt around his head to cover the lower half of his face. She said that she could see his face from about the middle of his forehead to the tip of his nose. She stated that this individual seemed to have the same forehead and eyes and to be dressed in the same clothing as the person she had seen outside the store. She said that there was no doubt in her mind that it was the same person. [12] She testified that this individual pushed her sideways toward the front of the store while screaming at her, with accompanying obscenities, that he wanted the money from the tills. She stated that she could feel the knife midway down her back, that she was terrified, and that she did open the two tills in the store for him. She stated that this person shoved the money in a paper bag. She said that she then asked him in a sarcastic tone of voice whether there was anything else he wanted. In response to his request, she then handed him two packages of Players Light cigarettes, which he put into the bag with the money. She stated that up to this point the robber had appeared agitated, panicky and aggressive, but that his manner and demeanour changed when he asked for the cigarettes "please." Asked whether he appeared to be under the influence of alcohol or drugs, she replied that she could not say. [13] Ms. Hugo stated that during the sequence of events inside the store she made eye contact with this person several times. During the robbery no one else was in the store. [14] She stated that her observations inside the store led her to estimate his height at about five-feet-four-inches. She said that these observations also confirmed her initial impression that he was a Native person. [15] She stated that apart from believing the person who robbed the store to be the same person she had observed in the walkway, she had not seen that person before, nor had she seen him since with the exception of the preliminary inquiry, where she had identified him. [16] She stated that after the robber left the store she locked up and called 911. She estimated that the police arrived in about five or six minutes and she spoke to Constable Kuan about what had happened. [17] In her examination in chief, Ms. Hugo said that in the course of her employment history this was the tenth time she had been in premises that were robbed. She stated that she and other employees of a Pharmasave Store, where she was then employed, attended courses given by a Vancouver security company relating to how one ought to react or not react in robbery situations, including how to be alert in taking note of identifying characteristics of the robber where feasible to do so by glancing at the individual quickly, but without staring in a manner that might aggravate the situation. [18] Under cross-examination, when it was put to her that the distance between the convenience store and the corner, where she saw the individual in the walkway, was some 49 feet, Ms. Hugo agreed that the distance between her and the person, when she observed him, was likely closer to 49 feet than to the 20 feet she had estimated in her examination in chief. [19] Ms. Hugo was cross-examined about certain aspects of her testimony compared with the content of a statement she gave to Constable Kuan that evening commencing at 10:52 p.m., that is to say, less than two hours after the robbery, and also compared with her testimony at the preliminary inquiry held on November 2, 2001. For example, in her statement to Constable Kuan she had stated that, as it was getting dark, she could not tell the length of hair of the person she had observed in the walkway. At trial, she explained that while the corner in front of the Galiano Market was relatively dark, making it hard to see his hair, his face was illuminated by fluorescent lighting. [20] In further cross-examination, Ms. Hugo agreed with the suggestion that when observing this individual in the walkway she had glanced at him to look for distinguishing features and at his clothing, but did not stare or look steadily at his face because she did not wish to aggravate him. [21] In the course of her cross-examination, the surveillance camera videotape, which has a soundtrack, was entered as Exhibit 5. Defence counsel, directing Ms. Hugo's attention to the surveillance tape and still photographs taken from it, suggested to her that contrary to her testimony she could not have observed the masked robber's eyes and forehead because of the nature of the mask. She denied this. [22] Also, when it was pointed out to her that the sound recording accompanying the surveillance tape does not carry her question to the intruder as to whether there was anything else he wanted, she responded to the effect that she knows she said this, although it is inaudible on the tape. [23] Defence counsel suggested that when she went outside the store to observe the person in the walkway, she did not sweep the sidewalk but, instead, went to get what was referred to as a "dog bowl" from the walkway. She stated that this is not what she remembers. The surveillance tape shows her holding a container of some sort, but does not show a broom or anything else suitable for sweeping. [24] In further cross-examination, Ms. Hugo agreed that the surveillance tape appears to show that the robber pulled rather than pushed her from the back of the store toward the tills, and that whatever he held in his other hand was in front of him and not pressed against her. [25] In any event, having regard to the whole of her testimony, it is clear that for Ms. Hugo the key identifying feature that led her to conclude that the individual she saw in the walkway and the robber were one and the same person was that person's eyes. Both in her examination in chief and in cross-examination, she described his eyes as "dark" and "unemotional." She offered no other description of his eyes and did not, for example, say that they were distinctive in shape or in any other respect. [26] Samantha Dixon testified that she arrived at a parking lot near the store around 9:30 to 9:45 p.m., when it was already dark outside, and that as she walked to the Family Mart Store, she saw a person in the walkway, which was illuminated by artificial lighting. She stated that she recognized that person to be the accused, Warren Dixon. She testified that she is now 30 years of age, that she has been resident in Sechelt for the last 23 years, and that she has known the accused and has seen him around town frequently over the years. [27] Ms. Dixon described the person in the walkway as wearing dark clothing, and she stated that his hair was shaved close to his head with a small tuft of hair at the top of his forehead. She said that his eyes were hardly open and that he looked as if he were drunk. [28] In her examination in chief, Ms. Dixon stated that while she was in the store Ms. Hugo left the store twice for short periods of time, once to fetch the dog dish and then, having filled it with water in the store, left the store a second time to take the dish back outside. Ms. Dixon testified that each time she saw Ms. Hugo glance quickly toward the person in the walkway and that on each occasion Ms. Hugo was as close as one foot away from that person. Ms. Dixon said that when she left the store the accused was still in the walkway. [29] In cross-examination, Ms. Dixon was referred to a statement she gave to Constable Kuan the night of the robbery. In that statement, she had stated that while Ms. Hugo had left the store to get the dog dish, it was Ms. Dixon herself who had taken it back outside, so that Ms. Hugo had gone outside the store only once and consequently had only that single opportunity to observe the individual in the walkway. The surveillance tape is consistent with the version of events that Ms. Dixon gave to Constable Kuan the night of the robbery as opposed to her recollection at trial. [30] Constable Kuan testified that about 30 seconds after receiving Ms. Hugo's 911 call that evening he left the detachment to attend at the scene. He testified that the detachment is near the store and, after a patrol of the vicinity that took approximately three minutes, he arrived at the store at about 9:41 p.m. He then interviewed Ms. Hugo and seized the surveillance tape, which he viewed with Ms. Hugo several times. [31] Constable Kuan testified that between his posting to Sechelt in 1997 and the date of the robbery he had dealt with the accused "extensively." In response to questions in examination in chief, Constable Kuan estimated that over this period of more than four years he typically saw the accused once every month or month and a half. He testified that he had had face-to-face dealings with the accused perhaps 25 to 40 times, and that his interaction with the accused on the street and at the detachment totalled at least 20 to 25 hours. Constable Kuan described the accused as about the same height as himself, that is, five-feet-eight-inches, 170 to 180 pounds in weight and about 19 years of age. Constable Kuan stated that he would "definitely" recognize the accused. [32] Constable Kuan testified that having viewed the surveillance tape a number of times he could not identify the robber visually as having been the accused. However, Constable Kuan stated that he was confident that he could recognize the accused's voice as recorded on the surveillance tape. Asked in examination in chief how he would describe the accused's voice, he stated that it could be low in tone and could also be "coarse" depending on whether or not the accused was, in his words, "under the influence." [33] Under cross-examination, Constable Kuan acknowledged that, as demonstrated in the courtroom, the accused is shorter than he is, and Constable Kuan did not disagree with defence counsel's suggestion that the accused is five-feet-five-inches tall. [34] In further cross-examination, Constable Kuan stated that he had no formal training in voice recognition, nor did he have the benefit of voice patterns of the accused. His opinion that the voice of the robber as recorded on the surveillance tape was that of the accused was based solely on his previous dealings with the accused. [35] In submissions, counsel for the Crown fairly conceded that Ms. Hugo's observation of the robber in the store was insufficient, by itself, to identify the accused. Crown counsel acknowledged that the description of the robber's clothing given by Ms. Hugo was essentially generic. However, in Crown counsel's submission, identification is established by two aspects of the evidence. One links Ms. Dixon's testimony concerning her recognition of the individual in the walkway as being the accused to Ms. Hugo's testimony to the effect that she, Ms. Hugo, recognized the eyes of the person in the walkway as being the eyes of the person who robbed the store. The other aspect of the evidence upon which the Crown relies is Constable Kuan's testimony to the effect that he recognized the voice recorded on the surveillance tape as the voice of a person with whom he was acquainted, namely, the accused. [36] Identification evidence requires careful scrutiny. In R. v. Burke, [1996] 1 S.C.R. 474, Mr. Justice Sopinka, delivering the judgment of the court, made the point succinctly in this passage from his reasons (at paragraph 52): The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection": R. v. Sutton, [citation omitted]. [37] With respect to visual identification in the present case, defence counsel pointed to a number of discrepancies between the testimony of Ms. Hugo and that of Ms. Dixon and to certain inconsistencies within the evidence each has given. Also, with reference to the evidence concerning the lighting at the place where the individual was positioned in the walkway, defence counsel submitted that neither of these witnesses could reliably identify that individual. [38] More importantly, even if Ms. Dixon's identification of the individual in the walkway as being the accused is accepted, the only visual identification of the person who later robbed the store consists of Ms. Hugo's testimony to the effect that she was able to recognize the eyes of the robber as those of the person she had earlier glanced at in the walkway and who, on her own account, was a considerable distance away in an area that was not very well lit. As noted, Ms Hugo described that person's eyes as "dark" and "unemotional," but she did not say that they were distinctive in shape or in any other way. I conclude that her testimony falls short of establishing visual identification beyond reasonable doubt. [39] The only other identification evidence is the testimony of Constable Kuan to the effect that he recognized the voice recorded on the surveillance tape as being the voice of the accused. The admissibility of such voice recognition evidence is not in issue. Further, it is common ground that Constable Kuan's testimony is entitled to as much, but no more, weight than that accorded to the testimony of any other lay witness asked to compare a recorded voice with that witness's recollection of the voice of an acquaintance. [40] One of the variables in voice recognition situations will obviously be the degree of familiarity that the witness has with the person whose voice the witness claims to have recognized. In this case, the defence concedes that the accused was known to Constable Kuan. [41] The other important variable, where the witness was not present at the scene of the crime, is the quality of the recording made of the perpetrator's voice. In the submission of defence counsel, the audio portion of the surveillance tape here in evidence is of such poor quality that it would be quite impossible to identify anyone. [42] At trial, the tape-recorded voice of the robber was played several times. The robber speaks only a few words, delivered in a staccato fashion, when directing Ms. Hugo to open the tills and to give him cigarettes. The sound reproduction is of low quality and it is difficult to make out just what it is that the robber is saying in those few, brief utterances. [43] I conclude that the voice recording upon which Constable Kuan necessarily rests his opinion fails to provide a sufficiently reliable basis for concluding that identification has been established beyond reasonable doubt. [44] I wish to make it clear that I do not question the honesty or integrity of the Crown's witnesses. What requires assessment is the risk of error on their part. The question is not whether the evidence gives rise to a suspicion or even to a belief that the accused is probably the perpetrator of the robbery. The question is whether identity has been established beyond reasonable doubt. I conclude that it has not and that a conviction would be unsafe. [45] It follows that I must find the accused not guilty on both counts in the Indictment. "K.M. Lysyk, J." The Honourable Mr. Justice K.M. Lysyk