Territorial Court

R. v. Geddes, 2004 NWTTC A4
Date: 20040528
Docket: T-1-CR-2003003155

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF


HER MAJESTY THE QUEEN


-and-


ANGUS GEDDES


Transcript of the Reasons for Judgment delivered by The Honourable Chief Judge R. M. Bourassa, sitting in Yellowknife, in the Northwest Territories, on the 29th day of April, A.D. 2004.


APPEARANCES:

Ms. T. Nguyen:   Counsel for the Crown

Ms. M. Engley:   Counsel for the Accused


(Charge under s. 267(b) Criminal Code of Canada)


THE COURT:   The accused is charged with assault causing bodily harm that followed a drinking bout in Rae lakes on the 17th of October, early 18th of October, 2003.

W.D. says, of course, that I have to listen to the evidence of the accused very carefully and assess it. If I believe his evidence, then that's the end for the Crown. If I believe his evidence, it was all an accident or some species of consensual fight.

Even if I don't believe his evidence, I have to decide whether or not his evidence leaves me with a reasonable doubt as to what transpired. And even if I don't believe his evidence and reject it, I still have to be satisfied on the evidence of the Crown that the case is made out beyond a reasonable doubt.

The charge is assault causing bodily harm. In law, one cannot consent to bodily harm in a consensual fight. When a consent fight starts involving bodily harm, a crime is committed regardless of the beginning intentions of the parties. It is clear on the evidence before me that the complainant suffered bodily harm.

I listened with interest to the evidence of the accused, and I am struck by a number of inconsistencies. Exhibit 2, which was admitted on consent as the records of the presiding nurse who treated Mr. Geddes on the October 18th, says, “Fight

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earlier in the a.m. with Johnny Tailbone. Passed out during fight. Doesn't remember anything,” referring to Mr. Geddes. Today, approximately five months or six months after the fight, Mr. Geddes remembers every conversation it seems, every argument, who said what, what words were used. I was impressed with his recollection today, but I found inconsistencies.

I thought he was anxious to establish that he, Geddes, wanted to have a peaceful evening and didn't want anything to do with Johnny Tailbone and Johnny Tailbone's drinking. That, in effect, Johnny Tailbone invited himself over even though he wasn't welcome. But when he did come over, unwelcome or not, the accused drank with him. They then ran out of alcohol and Johnny Tailbone wanted more.

According to Geddes' evidence, at an earlier stage in the evening, after 7:20 when Tailbone came over, Peter Zoe came over and then left, the inference being that where the three of them were sitting at a table and Johnny Tailbone was making snide remarks and taking cheap shots at Mr. Geddes, particularly about his criminal record, and an argument developed over that. Geddes said he just let it go. There was more talking and more drinking. Then Geddes says in furtherance of his depredations, Johnny Tailbone pulls out after-shave and he and Peter Zoe drink the after-shave. Mr. Geddes doesn't. Again, Tailbone was

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getting drunker, getting snide, according to Geddes, and wanted more booze. Then Geddes said, “He got me to call people for booze.” I don't understand how Tailbone, drunk, can force, coerce, persuade, or twist, figuratively speaking, Mr. Geddes' arm to get him to call people for booze, even though at this stage he, Geddes says, Tailbone, was getting teed-off.

They then drank hair spray. And now, after drinking hair spray, they go out driving around in Mr. Geddes' truck. Mr. Geddes is driving, looking for more booze. Geddes says that he did this in an attempt to get them out of the house. But they went back to the house. Geddes says, “because he wouldn't let me drop them off.” I don't know what the difficulty is in getting someone to drop off. Park the truck and walk away I suppose. But it seemed peculiar to me that Mr. Geddes not only was “forced” to call people for booze but he was essentially “forced” to bring them back to the house, on his evidence.

So they got back into the house and sat around for a while. Then Mauricio Alvarez, the Band manager called and spoke to Geddes, who told him that Tailbone was looking for a drink. And what does Geddes do? He invited Mauricio over. Not only that, he goes over and picks him up. He must have known - I mean, the whole evening was about drinking - Alvarez wasn't

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coming over to play tiddlywinks, he was coming over to drink. Geddes then said that after he picked Alvarez up, he suddenly produced a 60-ounce bottle. I don't know how one suddenly produces a 60-ounce bottle from a coat. That's a big bottle.

Well, then everybody was drinking. Geddes rolled his eyes and got demonstrative when saying how much Johnny Tailbone was drinking; that he was “throwing them back” and he was getting very drunk. Geddes admits that he wasn't half as drunk as Tailbone was and Alvarez wasn't as drunk as he, Geddes, was. And all this with a word-for-word recollection of everything that transpired.

Geddes goes on: They're sitting there and they do a little arm wrestling, and then all of a sudden Geddes says he wants Johnny Tailbone to leave; but, “I didn't want his family to think I was throwing him out.”

I don't understand this power that Tailbone had over Geddes.

Then Geddes said that he was getting nervous because Tailbone was getting mad. Then Tailbone said, according to Geddes, “You think you're man enough to throw me out?” And here is the critical juncture. On those words, Geddes says that he jumped up and hit him in the face. But then precisely simultaneously, at the very same time, instantaneous reaction, almost a

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co-reaction -- almost two spontaneous moves, Geddes punches Tailbone in the face, and at the same time Tailbone grabs him across the table and hits Geddes in the nose. Then Tailbone, hanging on, grabs and pulls Geddes over the table. Geddes still looking away, but punching like mad. They both go flying over the table. Geddes twists 180 degrees and lands on his back, and the back of his head strikes Tailbone in the mouth. Geddes got up and says he saw blood everywhere. And from being a ferocious assailant, Tailbone suddenly becomes a limp rag. Geddes picks him up and stated, “I threw him out.” He said there were no more hits after landing on the floor. In his evidence, I thought he made an effort to place much of the responsibility for everything on Tailbone and, if anything, coloured his evidence against Tailbone.

I look at the evidence of Alvarez. Alvarez's examination was quite short and quite to the point. He got over to Geddes' house and they were drinking. He noticed there was an argument going on between Johnny Tailbone and the accused. They were facing each other, and the accused got up, was upset, walked around the table and struck Tailbone in the face from the right. The party was breaking up at that stage. Alvarez said, “No fighting, no fighting.” As they were leaving, he looked back and saw Tailbone facing Geddes and saw Geddes hit him in the face again,

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knocking him down. When he was outside, he looked back on the porch and he saw Tailbone falling down again after another hit - that's the third - and Tailbone was on the ground and couldn't get up.

In cross-examination, Alvarez confirmed that Tailbone was drunker than anyone. Alvarez said he didn't recall any talk of hair spray or see any hair spray or after-shave drinking; and if Geddes was injured, he didn't see how it happened and didn't know how it happened.

There was some conversation with Alvarez with Tailbone and Zoe, I believe it was, after this event. I suppose opening the door to the possibility of concoction or the suggestion of concocted evidence. The door may have been opened a crack, but nothing of the sort came through, in my opinion.

I have a lot of difficulties with Geddes' evidence as to what transpired. I look at photographs. There are no apparent injuries to Tailbone's hands. He wasn't asked, but there are none on the photographs as far as one can determine from ink jet print. Insofar as his face goes, he's cut over the nose, he's cut on the mouth, and he's cut on the cheek. He's cut on the cheek where he says he received the first blow, which came from the left and hit him on the right cheek.

The defence is, firstly, accident. I don't

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accept that argument. There was a criminal intent. Geddes was angry, got up, and swung with intent to hit. That criminal intent precipitated what transpired after regardless of whether one accepts the Crown or defence evidence, and that was an assault in and of itself.

Was it a consensual fight? I have nothing before me that would indicate that Tailbone wanted to fight, that Tailbone had his fists up, that Tailbone invited a fight. In fact, the evidence is that Geddes got up and swung first. Even on Geddes' evidence, which is very difficult to accept, Tailbone reached out and grabbed him, didn't reach out to hit him. He first said “grabbed”, then he said “hit”. But on Geddes' evidence, difficult as it is, the best we could do is say that Tailbone's action was in fact a reaction to Geddes standing up and swinging.

There can't be consent to bodily harm. So even if somehow we could construe this as a consensual fight, Tailbone ended up significantly injured, suffering bodily harm. So that is not there. Accident that they fell over the table and somehow Geddes landed with the back of his head on him? I think that is dealt with in my first observation that this was no accident. The whole event was precipitated by that blow that Geddes started with, and the blow landed on his right cheek and his right

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cheek is bandaged. I don't know if it's sutured. Nobody has told me and I don't have any evidence. In any event, on the evidence before me, I'm not -- I have no evidence to find that this was a consensual fight. I have nothing that would indicate that this was an action without intent; in other words, possibly an accident.

The evidence I have that I find reliable and trustworthy is the evidence of Alvarez. The evidence of Tailbone insofar as Tailbone's evidence goes that he was blind-sided, struck on the right cheek by Geddes who was on his left, and the evidence of Alvarez, who was the least drunk of the bunch, who saw that the drunken Tailbone was hit three times by this man, and I convict him.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules of Court

Jane Romanowich
Court Reporter

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