Youth Justice Court

R. v. E.K., 2006 NWTTC 14 Y-1-ST-2006-000012
IN THE YOUTH JUSTICE COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN

-v-

E.K.
(A Young Person)
Transcript of the Reasons for Judgment delivered by The
Honourable Judge R. Gorin, in Yellowknife, in the Northwest
Territories, on the 25th day of August, A.D. 2006.

APPEARANCES:
Mr. B. Hubley: Counsel on behalf of the Crown
Mr. C. Rehn: Counsel on behalf of the Young Person

Charge under s. 259(1)(a) M.V.A.


1 THE COURT: E.K., a young person within
2 the meaning of the Territorial Youth Justice Act,
3 is charged with operating a motor vehicle on a
4 highway without a valid driver's licence in
5 violation of section 66 of the Motor Vehicles
6 Act. It is admitted that she possessed no valid
7 driver's licence on the date charged, May the
8 13th, 2006. The issue before me is whether or
9 not it has been proved beyond a reasonable doubt

10 that she was operating a motor vehicle on a
11 highway on the date alleged. In particular, the
12 issue boils down to whether or not it was E.K.
13 rather than her former best friend T.K. who was
14 driving the motor vehicle at the time that the
15 vehicle was on the highway.
16 During this brief trial I heard from three
17 witnesses. I heard from Bonita Nordahn who was
18 on duty as a security officer on the date
19 charged. I heard from T.K. who on the date
20 charged was still a good friend of the accused.
2 Both of these witnesses were called by the Crown.

2 The accused E.K. testified in her own defence.
2 Bonita Nordahn testified as follows. On the
2 date of the alleged offence she was driving on
2 patrol at the Giant Mine site three kilometres
2 outside of the heavily populated part of
2 Yellowknife. She came around a corner in the

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1 vehicle she was driving and saw a girl, that is
2 one girl, coming out of one of the houses located
3 at the site. The girl took a running jump and
4 headed towards a small green car and got in the
5 passenger side. Ms. Nordahn testified that the
6 accused was sitting on the driver's side of the
7 small green car. After the other girl jumped
8 into the passenger side, Ms. Nordahn phoned the
9 RCMP to report a possible break and enter

10 offence. She watched the two at a distance of
11 about 30 feet away. They sat looking at her.
12 Ms. Nordahn was instructed not to let anybody
13 out, so she started to manoeuvre her truck to
14 block the other vehicle's exit onto the highway.
15 At that point the driver of the vehicle attempted
16 to leave in the vehicle. The vehicle moved
17 towards Ms. Nordahn's vehicle at a speed she
18 described as being fairly fast. Ms. Nordahn
19 testified that she, that is Ms. Nordahn,
20 misjudged the distance between a tree and the
2 truck she was driving and that as a consequence

2 of this misjudgment the other vehicle proceeded
2 on by her and "nicked" her truck on the way out.
2 She testified that at this point the same girl
2 she had seen sitting in the driver's seat, a girl
2 with long, dark hair, was driving.
2 The sun was coming up; the weather was clear

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1 and cool. The entire time period during which
2 she had observed the two girls up to the point of
3 their departure in the vehicle onto the highway
4 was about 30 to 45 seconds. The vehicle
5 proceeded onto the highway and on down the
6 highway. Ms. Nordahn testified that she then
7 also proceeded down the highway to see if she
8 could find the two girls.
9 She later noticed that some ribbons across

10 the entranceway to part of the mine's property
11 known as "A Shaft" had been broken. To her
12 knowledge, they had not been broken before. She
13 drove in and found the same green car she had
14 observed earlier now abandoned. As she continued
15 to patrol in her vehicle she saw two heads pop up
16 from behind a "pipe box". At that point she
17 parked her vehicle nose to nose in front of the
18 green car so it could not drive away. Her
19 driver's seat would have been only a few feet
20 from the other vehicle's driver's seat.
2 As anticipated by Ms. Nordahn, the two

2 girls, who were not properly dressed for the cool
2 weather, came walking down the road towards the
2 green vehicle. She testified that she recognized
2 the two girls. She testified one was
2 blonde-haired and one was dark-haired. About 15
2 or 20 minutes had passed since the two had been

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1 observed behind the pipe box. The two were
2 shivering and had their hoods up over their
3 heads. Ms. Nordahn testified that the
4 blonde-haired girl had a white top on with a hood
5 on it, and that the dark-haired girl had a dark
6 top with a hood on it and a light-coloured shirt.
7 I pause to note that yesterday when I
8 observed both the accused young person E.K. and
9 T.K., they appeared to have dark hair. There was

10 little difference, at least in my assessment, in
11 the colour of their hair.
12 Ms. Nordahn stated that E.K., the
13 dark-haired girl, came up to the window of her
14 truck and asked Ms. Nordahn if she would move the
15 truck so she could leave. Ms. Nordahn did not
16 move the truck. Ms. Nordahn says E.K. went over
17 and talked to her supervisor and took the keys
18 out of her pocket; E.K. unlocked the passenger
19 door of the green vehicle to let T.K. in and then
20 went to the driver's side and got in herself. At
2 a later point she got out of the vehicle and

2 asked Ms. Nordahn if she had a light. She wanted
2 a cigarette. When she was refused, she got back
2 in the vehicle.
2 At some point when the vehicle was parked in
2 front of Ms. Nordahn's vehicle, it was turned on.
2 However, counsel appear to be on common ground

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1 that at this point the vehicle was not on a
2 highway, so section 66(1) of the Act would not be
3 applicable. I concur.
4 Apparently, the vehicle stayed in this
5 position for about 30 to 40 minutes. Ms. Nordahn
6 states that during that time frame the accused
7 did not leave her sight. Ultimately, the RCMP
8 arrived and took the two girls in to custody.
9 From the time the two girls were observed behind

10 the pipe box to the time that they left, an hour
11 or more would have passed.
12 During cross-examination, Ms. Nordahn
13 allowed that when she first observed the two she
14 was not able to distinguish the blond-haired girl
15 and the dark-haired girl well enough to identify
16 them positively, and that she was not able to do
17 so until they passed by in their vehicle at the
18 time her truck was nicked. She said she first
19 observed the blonde-haired girl, and that it was
20 not until the blonde-haired girl was running
21 towards the car that she saw the dark-haired girl
22 in the driver's seat. She said that when the
23 vehicle drove by her it was the blonde girl in
24 the passenger seat who would have been closer to
25 her. Ms. Nordahn admitted that it was only
26 during the later period following the time when
27 the two returned to the vehicle out at A Shaft

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1 that she had a good chance to observe the girls.
2 However, she did testify that there was no
3 question in her mind as to who was driving at the
4 relevant time, that being the accused E.K.
5 T.K. testified. She said that on the date
6 charged she drove to the accused's residence and
7 picked her up at her house. They went to a
8 friend's graduation. They drove around a little
9 afterwards. They went to the Yellowknife Arena

10 to meet friends and later, after they were
11 invited to do so by friends, proceeded out to
12 Giant Mine.
13 T.K. testified that she was not the only
14 person who drove and that the accused, E.K.,
15 drove when they were at the Giant site. E.K.
16 testified that she drove to the Giant Mine area.
17 She testified that while at the Giant Mine area a
18 security guard came "so we drove past them and
19 she accidentally backed into us, so we left."
20 T.K. testified that they then went to look
2 some more for people they were going to pick up.

2 She testified that the two were told to go to a
2 specific house and that they went there, and that
2 when they couldn't find them at all they just
2 started driving away because they saw someone
2 coming and got scared. She says that E.K. drove
2 when they got back into the car after looking to

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1 find the people they were unable to locate. She
2 says that at the point E.K. got into the vehicle
3 immediately prior to her driving. The keys were
4 in the ignition. E.K. started driving and they
5 drove around the vehicle because it was parked on
6 the wrong side of the road and it backed into
7 them. They then left towards the Yellowknife
8 River, proceeding down the highway.
9 T.K. testified that she does not know the

10 name of the highway but that it is paved and has
11 white lines on it. She testified they went back
12 to the mine site and stopped the vehicle. They
13 took the keys out and proceeded on foot for some
14 time. When they eventually walked back to the
15 vehicle, two security vehicles had arrived at the
16 scene. T.K. testified further that one was
17 parked in front of the car they were driving and
18 one was parked behind it. They got back in the
19 vehicle. The accused sat on the driver's side
20 and T.K. sat on the passenger's side. They sat
2 for about half an hour. The police came and put

2 the two in jail for the night.
2 T.K. testified that she lied to police and
2 told them that she was driving the vehicle at the
2 relevant time. In explaining this prior
2 inconsistent statement, she stated during her
2 examination-in-chief:

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1 My parents used to get really mad at
2 me because I had my car, when I had
3 my car -it's broken down now,
4 that's why I'm driving my sister's -
5 and she said --and I was scared
6 that they were going to get mad at
7 me, more really my sister though, it
8 was her car. And it was really late
9 and we weren't supposed to be out


10 that late.
11 She continued by saying:
12 My parents and I talked and they
13 told me that it's --that, that
14 sticking up for someone isn't going
15 to help me in any way.
16 And finally she testified further on this point
17 saying:
18 It made me think, and I thought
19 about it and I decided that it would
20 just get me in more trouble if I
2 lied.

2 T.K. testified that the reason she changed
2 her story and decided to tell the truth, what she
2 says is the truth, was that when she talked to
2 her parents they told her that sticking up for
2 someone was not going to help her in any way.
2 During cross-examination the following

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1 exchange took place between Mr. Rehn, the defence
2 lawyer in this case, and T.K. on the point of the
3 prior inconsistent statement given to the police.
4 Question: And you're saying that
5 you just had a change of heart after
6 talking with your folks; is that
7 what you're saying?
8 Answer: Well when I talked to them,
9 when I said that E. was driving,

10 they were upset with me. And I
11 didn't think my sister would be
12 either.
13 Question: So you thought it was -14
but before that you thought it was
15 okay to lie?
16 Answer: Well I wasn't really --I
17 was trying to protect my friend.
18 Question: Oh, I see. And it had
19 nothing to do with the fact that you
20 were driving during the accident?
2 Answer: I wasn't driving during the

2 accident.
2 T.K. testified that she and the accused have
2 had a serious falling out since the incident
2 giving rise to the charge against E.K.
2 E.K. testified as follows: T.K. came to her
2 house; they left in T.K.'s vehicle to watch

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1 friends graduate. Later on that night they went
2 to a party. T.K. received a call so they went to
3 the Giant Mine property. T.K. was driving. They
4 went up a hill to a house. T.K. got out of the
5 vehicle and knocked on the door and E.K. stayed
6 in the vehicle. On her version, she was
7 obviously still in the vehicle on the passenger
8 side at this particular point. After a
9 relatively brief period of time, E.K. became

10 unnerved due to the fact that no one was showing
11 up. She got a feeling that something bad was
12 going to happen. She rolled down her window and
13 told this to T.K., who ran back into the vehicle
14 and got in the driver's side. When she got back
15 in the vehicle they looked at the security
16 vehicle which had turned up, trying to see inside
17 of it. E.K. states that they couldn't see inside
18 the security vehicle because its lights were on.
19 The vehicle that they were in had its lights on
20 as well, according to E.K.
2 With T.K. driving, they decided to leave and

2 the security vehicle started backing up. The
2 security vehicle tried to cut them off and T.K.
2 drove faster and managed to drive onto the
2 highway. A collision between the two vehicles
2 occurred at this point, that is, the point that
2 they were leaving the mine site and proceeding

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1 onto the highway. They got out of the vehicle a
2 short time later and examined the damage, which
3 appeared to be minor.
4 They then got back and T.K. continued to
5 drive. They then received a call on a cell phone
6 from a friend who they decided to try to locate.
7 They proceeded back to the Giant Mine property.
8 At one point they left on foot to locate their
9 friends. They proceeded for some time until they

10 could hear a vehicle coming. They realized that
11 they had been observed. T.K. wanted to wait
12 things out until the vehicle left. However, E.K.
13 states that after she told T.K. that the vehicles
14 probably would not leave, T.K. gave E.K. the keys
15 to the vehicle and E.K. testified that T.K. was
16 very nervous and that she asked E.K. to take the
17 keys and asked if the security personnel could
18 move their vehicles so that the two could leave.
19 E.K. agreed that the car they had been in was
20 boxed in at that point.
2 E.K. went to the truck occupied by Ms.

2 Nordahn. She was surprised, she says, to find
2 out that Ms. Nordahn was a female. She testified
2 that up to that point she had assumed the driver
2 was a man. She tried to persuade the security
2 personnel to move their vehicles. When that did
2 not happen, she eventually went back into the

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1 vehicle and got into the driver's side.
2 She confirmed that she and T.K. have since
3 this incident had a very serious falling out and
4 that they are no longer friends. She states that
5 previously they have been the best of friends.
6 I listened carefully to the submissions of
7 counsel and after having heard those submissions
8 I felt it necessary to review the evidence. The
9 reason I felt this necessary was that the Crown,

10 Mr. Hubley, said that certain evidence had been
11 adduced, which I could not recall. I have
12 reviewed the transcript of yesterday's
13 proceedings.
14 Mr. Hubley misstated the evidence in a
15 number of important ways. I will first deal with
16 the first 30 lines of his submissions.
17 MR. HUBLEY: Thank you, Your Honour.
18 The Crown's position is that the
19 case is very black and white. The
20 testimony of Bonnie Nordahn was
2 confirmed by her. She took notes

2 contemporaneous with the events.
2 There's no dispute about that. Her
2 recollection was quite clear. She
2 observed the accused to be wearing a
2 black hoodie. She observed the
2 accused wearing this black hoodie

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1 enter the driver's side of the
2 vehicle. She observed Ms. T.K., who
3 was wearing a white hoodie, get in
4 the passenger side of the vehicle.
5 And then she observed this vehicle
6 drive past her and she describes
7 a --there was indication from both
8 the accused and Ms. T.K. that there
9 was a collision of sorts, a rather
10 minor fender-bender I guess. That
11 is consistent with Ms. T.K.'s
12 evidence that Ms. E.K. was driving
13 the vehicle at that time. Ms.
14 Nordahn indicated that both of these
15 women were outside of the vehicle.
16 She indicated that the one wearing
17 the white hoodie, who was Ms. T.K.,
18 and the accused specifically
19 indicated and agreed that she was
20 the one wearing the black hoodie and
2 that Ms. T.K. was wearing the white
2 one.
2 Ms. Nordahn's evidence was that
2 they both went to the vehicle. The
2 accused got into the driver's side
2 of the vehicle and then Ms. T.K. got
2 into the passenger side of the

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1 vehicle. Then they drove away.
2 It's consistent with Ms. T.K.'s
3 evidence they then left, they went
4 out onto the highway. That is
5 consistent. And then they came
6 back.
7 Later on during the course of his submissions,
8 Mr. Hubley stated:
9 Ms. T.K. said that she was trying to
10 cover for her friend. She was able
11 to drive. She indicated that she's
12 driven this vehicle and other
13 vehicles and it was a bad mistake to
14 cover for her friend. If she was
15 the one driving, she had the
16 licence. She knew that her friend
17 didn't have a licence. It's almost
18 Shakespearean as to how this
19 unfolded in to the two of them
20 having a falling out, considering
2 that Ms. T.K. was trying to protect
2 her friend at the relevant time.
2 In making these submissions I have referred
2 to the Crown incorrectly stated the evidence in a
2 number of key aspects. The Crown was incorrect
2 in suggesting that Ms. Nordahn's evidence was
2 that she saw who was wearing what coloured hoodie

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1 at the time of her initial observations before
2 the point in time that she saw the vehicle drive
3 away.
4 The Crown was incorrect in suggesting that
5 Ms. Nordahn's evidence was that she saw both the
6 accused and T.K. enter the vehicle before the
7 point in time that she saw them drive away.
8 Finally, I heard no evidence suggesting
9 that T.K. had a valid driver's licence on the

10 date charged.
11 I find it quite disturbing that Crown
12 counsel made all of these errors in his review of
13 the evidence. I assume without reservation that
14 the errors were due to inadvertence.
15 Nonetheless, Crown counsel should have been far
16 more careful, and I hope that he conducts himself
17 accordingly in the future.
18 In any event, in deciding this case I remind
19 myself that the standard of proof is proof beyond
20 a reasonable doubt. It is not simply a matter of
2 deciding what likely happened. However, I also

2 must remind myself that I must not place an
2 unrealistically high burden of proof on the
2 Crown. The Crown is not required to prove its
2 case to an absolute or scientific certainty. The
2 standard of proof is simply as I have stated,
2 proof beyond a reasonable doubt, and I note that

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1 the Supreme Court of Canada has stated that the
2 standard of proof beyond a reasonable doubt lies
3 closer to that of proof to an absolute certainty
4 than it does to a balance of probabilities on the
5 continuum between the two standards. In this
6 case it simply is not a matter of deciding
7 whether or not E.K. is telling the truth when she
8 says that she was not driving.
9 In this case, in analyzing the evidence I

10 have to follow the approach laid out by the
11 Supreme Court of Canada in the decision of Regina
12 v. W.D. That test is as follows: Firstly, if I
13 believe E.K., I must obviously find her not
14 guilty. However, secondly, even if I do not
15 believe her, if her evidence leaves me with a
16 reasonable doubt as to her guilt, I must find her
17 not guilty. Thirdly, even if I reject her
18 evidence to the extent that it raises no
19 reasonable doubt, I must assess all of the other

20 evidence adduced at trial and determine whether
2 or not it proves her guilt beyond a reasonable

2 doubt before I can find her guilty. A fourth
2 head of the test has been added by cases decided
2 subsequent to W.D., and that fourth head is as
2 follows: If I am unable to decide whom to
2 believe, I must acquit.
2 I must remind myself that I am not a

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1 detective and it is not my task to solve this
2 case. If after carefully analyzing all of the
3 evidence I am unsure as to what occurred, it is
4 not my job to solve the mystery.
5 Recent jurisprudence from the Manitoba Court
6 of Appeal provides that it is preferable to work
7 through the heads of the W.D. test in the order
8 they are set out in that case to avoid placing
9 undue weight on the Crown's evidence when

10 assessing the evidence of the accused. However,
11 having said that, in my view it would be a gross
12 error in law to assess the accused's evidence in
13 an evidentiary vacuum and not weigh it in the
14 light of all the other evidence before the court
15 when determining whether or not it is to be
16 believed or whether or not it raises a reasonable
17 doubt. For example, it would be absurd if a
18 trier of fact ignored several different
19 videotapes of an accused committing a crime when
20 assessing his testimony denying his commission of
2 that particular crime.

2 I will make some brief observations about
2 the evidence at this point.
2 In analyzing the evidence I remind myself
2 that while the credibility of each witness is
2 definitely important, ultimately it is the
2 credibility and reliability of the evidence which

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1 is most important. I also remind myself that a
2 prior inconsistent statement, unless adopted, is
3 not positive evidence as to what transpired. It
4 is simply evidence which can be used in assessing
5 the credibility or reliability of a witness. A
6 prior consistent statement on the other hand,
7 subject to very limited exceptions, has no
8 evidentiary value. Prior consistent statements
9 cannot be used to bolster the in-court testimony

10 of a witness. Such impermissible use of prior
11 consistent statements is often referred to as
12 oath helping.
13 With the greatest of respect to defence
14 counsel, I also attach absolutely no evidentiary
15 value whatsoever to the fact that the accused has
16 chosen to plead not guilty rather than pay a
17 fine. While she certainly has the right to plead
18 not guilty and by exercising that right puts the
19 Crown to the test of proving its case beyond a
20 reasonable doubt, I cannot consider the plea of
2 not guilty as actual evidence. Doing so would be

2 allowing the accused to bootstrap her own
2 evidence in a manner similar to that which is
2 prohibited by the rule against allowing prior
2 consistent statements to bolster in-court
2 testimony.
2 At this point I will make some more specific

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1 comments about the actual evidence adduced.
2 Firstly, Ms. Nordahn's evidence on who was
3 wearing what coloured hoodie at the time
4 that E.K. and T.K. were observed does not help me
5 much at all. The evidence I heard as to who was
6 wearing what coloured hood or hoodie concerned
7 the time that they were later observed for an
8 extended period of time, and not the earlier and
9 far briefer time period immediately prior to and

10 including following when the accident occurred
11 and the vehicle proceeded on to and down the
12 highway.
13 Secondly, as I have also stated, the hair
14 colour of the two girls as described by Ms.
15 Nordahn troubles me. She describes the person
16 who the Crown alleges was T.K. as having blonde
17 hair. She describes E.K. as having dark hair.
18 From what I have observed in court, and as I have
19 already said, their respective hair colours are
20 quite similar. At least to me they are quite
2 similar. There is no evidence to suggest that

2 T.K. had a different hair colour on the date
2 charged.
2 Thirdly, as stated, Ms. Nordahn only saw one
2 person, not two, proceeding towards the vehicle
2 at the time that she first observed the girls.
2 In that particular respect, Ms. Nordahn's

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1 evidence is more corroborative of the accused's
2 version of events than it is T.K.'s, although I
3 certainly do take into account the fact that both
4 T.K. and Ms. Nordahn testified that it was the
5 accused who was driving.
6 However, the frailties associated with
7 in-court identification when the witness has only
8 a brief opportunity to observe the accused at the
9 relevant time, or the person who is alleged to

10 have been performing a certain activity at the
11 relevant time, are notorious.
12 Finally, I will state that I find that the
13 prior inconsistent statement given by T.K. to the
14 police gives me great concern when assessing her
15 credibility and the weight to be attached to her
16 evidence. I take into account her explanation as
17 to the inconsistency; however, at the same time
18 the inconsistency in question is certainly not
19 minor. It goes to the very heart of this matter
20 -who was driving when the two proceeded past the
2 security vehicle onto the highway. Due to this

2 concern, at the end of the day I give T.K.'s
2 evidence little weight notwithstanding her
2 explanation.
2 So, as I have stated, the first two things I
2 am required to determine are whether or not I
2 believe the accused, and if not, whether or not

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1 her evidence leaves me in reasonable doubt.
2 I do have some difficulty with the evidence
3 of E.K. Her explanation as to why she had the
4 keys is that:
5 I told her they probably wouldn't
6 leave. So she gave me the keys and
7 asked if I could, like, that she was
8 really nervous, she didn't know what
9 to do and asked if I could just like

10 go up and ask if they would move
11 instead of her. So I took the keys
12 and I asked if they could leave -13
or if they could move so that we
14 could get out.
15 Really, why would the accused have the keys
16 at this point if she wasn't the one who had been
17 driving the vehicle earlier? However, to be
18 fair, I cannot say that I find T.K.'s explanation
19 as to how she says E.K. got the keys earlier any
20 more compelling. When T.K. was first asked by
2 the Crown why she did not take the driver's seat

2 when she and E.K. returned to the vehicle at the
2 time of Ms. Nordahn's initial observations, she
2 said "I don't know." As previously stated at
2 this point, Ms. Nordahn testified that she saw
2 only one person get in the vehicle, not two as
2 described by T.K. E.K.'s evidence is the same in

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1 that respect. If T.K. was the only person
2 getting back in the vehicle and E.K. had not
3 left, she would even on T.K.'s version have still
4 been on the passenger side of the vehicle and
5 T.K. would have had no alternative but to get
6 into the driver's side.
7 In examining E.K.'s explanation as to how
8 she eventually got the keys, I take into account
9 the fact that she and T.K. were still good

10 friends at the time of these events. The best of
11 friends, according to E.K. Perhaps T.K. was very
12 nervous and E.K. possessed the greater poise
13 necessary to speak to the security personnel
14 blocking the vehicle. Certainly when the two
15 testified in court E.K. appeared to possess much
16 greater poise than did T.K. However, I must be
17 careful not to place undue emphasis on their
18 respective in-court demeanour in assessing their
19 credibility.
20 I will say that I have spent a great deal of
2 time thinking about this case since yesterday

2 afternoon after hearing counsel's submissions
2 notwithstanding its relatively minor nature.
2 After considering the evidence carefully, I
2 have determined that I cannot say that I reject
2 the accused's evidence to the extent that it does
2 not at the very least leave me in reasonable

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1 doubt as to her guilt. She was cross-examined
2 thoroughly and well, and I find that at the end
3 of the day her credibility was not impeached to
4 the point that I can reject her evidence. Put
5 another way, at the end of the day I am not sure
6 whom to believe. However one thing is certain,
7 and that is that yesterday either E.K. or T.K.
8 committed the far, far more serious criminal
9 offence of perjury. I cannot say with any real

10 degree of certainty who it was, who committed
11 that offence. In making this observation I
12 should make it clear that I believe that Ms.
13 Nordahn was telling the truth and doing her level
14 best to accurately recount what she saw. I found
15 her very credible, however I have concerns with
16 the reliability of her initial identification of
17 the driver and the passenger. I have concerns
18 over whether or not she saw the single person she
19 described get in the vehicle on the passenger
20 side or the driver's side. Each witness called
2 had a different version of events in describing

2 the details of either, whether both T.K. and E.K.
2 were out of the vehicle at that point, or who got
2 in on what side of the vehicle at the time of
2 Ms. Nordahn's initial observations. As I have
2 mentioned several times already, there is also
2 the issue of T.K.'s hair colour. People often

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1 become sure of things they think they saw which
2 did not actually happen the way they remember.
3 Certainty is no guarantee of accuracy. Witnesses
4 who are doing their best to recall events that
5 happened quickly can make mistakes and be certain
6 as to the accuracy of their recollection.
7 Since I have a reasonable doubt as to E.K.'s
8 guilt, I must find her not guilty.
9 I believe that that would conclude this

10 matter.
11 MR. REHN: No, sir, I don't have any
12 other matters. I believe you've got a further
13 matter this afternoon.
14 THE COURT: All right, thank you.
15 MR. REHN: If I might be excused, thank


16 you.
17 THE COURT: Of course. And E.K. is free
18 to leave at this point.
19 ..............................
20
2 Certified to be a true and


accurate transcript pursuant
2 to Rule 723 and 724 of the
Supreme Court Rules of Court.
2
2
2 Annette Wright, RPR, CSR(A)
Court Reporter
2
2

Official Court Reporters

24