Brief - Assault March 4 2013

7/29/2019 Brief - Assault March 4 2013

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Information No.

09458205, 09479105, and 09497005

New Brunswick Provincial Court (Provincial Court Office of Fredericton)

BETWEEN:

HER MAJESTY THE QUEEN

and

ANDRE CHARLES MURRAY

______________________________________________________

BRIEF RESPONDINGTO SECTION 266(b)Allegation of Assault

Filed by Self Represented Litigant

Andre Murray

______________________________________________________

ANDRE MURRAY,

Applicant/Defendant/Accused

103 Huntingdon Circle,

Fredericton, New Brunswick,

E3B 0M1, Canada,[email protected]

Fredericton Crown Prosecutor

Christopher LavigneFredericton Crown Prosecution Services

[email protected]

Hilary DrainRegional Director of

Fredericton Crown Prosecution Services

[email protected]

Reception: (506) 453-2819

Fax: (506) 457-4812

Mailing Address

Justice BuildingRoom: 313

P. O. Box 6000,

Fredericton, NB,

E3B 5H1, Canada


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SELF REPRESENTED, ANDRE MURRAYS BRIEF

RESPONDING TO SECTION 266(b) OF THE CRIMINAL CODE OF CANADA

ASSAULT

INDEX

Page

INDEX __________________________________________________________________ i

(1) Introduction ____________________________________________________________ 1

(2) Accuseds Self Defense __________________________________________________ 3

(3) Credibility ____________________________________________________________ 5

(4) Key points in the Testimony of Neil Rodgers April 10 2012 _______________________ 9

(5) Key points in the Testimony of Neil Rodgers April 23, 2012.______________________ 12

(6) Use of Force ___________________________________________________________ 15

(7) Self Defense ___________________________________________________________ 19

(8) The Crown Must Prove ___________________________________________________ 20

(9) Conclusion _____________________________________________________________ 21

ORDERS SOUGHT ________________________________________________________ 23


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(1)

INTRODUCTION

1. The accused Andre Murray, alleged to have committed assault upon Neil Rodgers, on April10, 2012, is innocent.

2. According to Section 266 of the Criminal Code of Canada the result of being convicted ofassault is:

Assault

266. Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceedingfive years; or

(b) an offence punishable on summary conviction.3. The crown has chosen to pursue section 266(b) an offence punishable on summaryconviction. The Crown has the burden of proof, to prove the case against the accused beyond a

reasonable doubt.

4. Section 265(1) of The Criminal Code of Canada defines assault as a :265. (1) A person commits an assault when

a. (a) without the consent of another person, he applies force intentionally to thatother person, directly or indirectly;

b. (b) he attempts or threatens, by an act or a gesture, to apply force to anotherperson, if he has, or causes that other person to believe on reasonable grounds thathe has, present ability to effect his purpose; or

5. The Court must determine a matter of: did Andre Murray without the consent of NeilRodgers, intentionally apply force to Neil Rodgers, directly or indirectly?

6. The Court must determine a matter of: did Andre Murray attempt or threaten, by an act or agesture, to apply force to Neil Rodgers?


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7. The Court must determine a matter of: should the Court find that the actions of AndreMurray constitute Criminal assault, upon the person of Neil Rodgers, is the Court satisfied

beyond a reasonable doubt the defence of Self Defence, does not apply?

8. Upon the Honorable Court, reviewing the evidentiary audio/video, as provided to the Courtas Exhibit A of Affidavit provided by and signed by witness Shane Henry, however, the objective

observer, while watching the subject Exhibit A evidentiary audio/video must take note, that it

was in fact Neil Rodgers who was the aggressor at all times throughout victim, Process Server

Andre Murrays attempts to Process Serve Trina Rodgers; repeatedly and without the consent of,

Andre Murray, Neil Rodgers is observed, interacting and behaving in a violent manner towards

Andre Murray whereby Neil Rodgers is observed initially uttering threatening remarks followed

by grabbing, pulling, pushing, Andre Murray to the ground.

9. As the unrelenting physical assault upon Andre Murray who is being victimized by NeilRodgers, progresses, however despite Andre Murrays passive demeanor Neil Rodgers escalates

his aggression against his victim Andre Murray, by choking then striking Andre Murray with a

closed hand fist into the head and facial area of Andre Murray who is not resisting.

10. Furthermore, as if Neil Rodgers thought choking and punching Andre Murray on his facewas not adequate Neil Rodgers perhaps realizing he would experience any resistance from Andre

Murray at this time as we see in the audio video now the two parties are directly in front of Neil

Rodgers front entrance to his residential civic address, Neil Rodgers from behind mounts the

back of Andre Murray, at this time Neil Rodgers comfortably mounted on the back of Andre

Murray proceeds to incidentally choke hold Andre Murray causing damage to the neck and back

of Andre Murray.

11. Andre Murray now observed to have placed the process service object court documentsbefore Trina Rodgers, who is standing in her front door entrance way. However, at this point of

the audio video despite Andre Murray being observed as clearly and calmly attempting to leave

the area, nevertheless aggressor Neil Rodgers continues his pursuit of his victim Andre Murray.


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12. Please Note: Neil Rodgers has provided his own statements to the Police which clearlyindicates that Neil Rodgers was aware that Andre Murray was on date April 10 2012, merely

attempting to serve Court Documents upon Trina Rodgers. In the introduction portion of the

subject audio/video provided as Exhibit A evidence within the Affidavit of Shane Henry

Andre Murray is clearly heard declaring his intention and purpose for being at the civic address

property April 10 2012, to process serve Court Documents upon Defendant Intended Respondent

Trina Rodgers. It is unreasonable and disproportionate behaviour of Neil Rodgers that he would

physically assault a Process Server attempting service of Court Documents upon his wife,

especially in light of the fact that he was forewarned of the event prior to Andre Murrays arrival

and or appearance at Neil Rodgers residence.

13. If the Court concludes that Andre Murray did without the consent of Neil Rodgers, applyforce intentionally to Neil Rodgers, directly or indirectly, the question the court must ask having

viewed the evidence as provided within the Affidavit of witness Shane Henry, Exhibit A

audio/video is: first of all are the allegations as provided by Neil Rodgers, Trina Rodgers and or

Thomas Rodgers containing any substantive material evidence of assault; however, if indeed

Andre Murray touched Neil Rodgers was Andre Murray justified in doing so, if contact occurred

because Andre Murray was attempting to perhaps deflect and or redirect the forceful strikes and

or blows directed at his physical body, by Neil Rodgers, would this then be considered

reasonable beharviour behaviour on the part of victim Andre Murray and reasonably in self

defence. Andre Murray did not intended to cause death or grievous bodily harm to Neil Rodgers

as is abundantly clear to anyone with eyes and ears having viewed the subject evidence as

provided within the Affidavit of witness Shane Henry, Exhibit A audio/video. Absolutely no

force was used by Andre Murray against Neil Rodgers.

14. The burden is on the Crown to prove beyond a reasonable doubt, mens rea and actus reusof Andre Murray in their allegation of assault; furthermore, the burden is on the Crown to provebeyond a reasonable doubt that a defence does not apply.

(2)

SELF DEFENSE

15. The accused evokes section 34(1) and Section 37 of the criminal Code of Canada:


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34. (1) Self-defence against unprovoked assault

Every one who is unlawfully assaulted without having provoked the assault is justified in

repelling force by force if the force he uses is not intended to cause death or grievous

bodily harm and is no more than is necessary to enable him to defend himself.

Preventing assault

37. (1) Every one is justified in using force to defend himself or any one under his

protection from assault, if he uses no more force than is necessary to prevent the assault

or the repetition of it.

16. As provided herein above excerpts of section 34(1) and Section 37 of the criminal Codeof Canada clearly articulates that every one may use force to defend themselves;for this reason

and considering the herein above mentioned subject exhibit A audio/video evidence as offered by

witness Affidavit of Shane Henry, therefore, relied upon by the defence, (of the events which

occurred April 10, 2012, between Neil Rodgers and accused Andre Murray), including the Affidavit

testimony of eye witness Shane Henry, if the Court believes the testimony and corroborative video

evidence and concludes after watching the video that:

Andre Murray did not commit the alleged offence; The behaviour of Andre Murray lacks essential elements of the alleged offence; The evidence as provided on behalf of the accused, including evidence provided by the

accused either standing alone or taken together with all of the other evidence leaves the

Court in a state of reasonable doubt.

the Court must acquit Andre Murray.

17. Upon consideration of all of the available substantive material evidence, both AffidavitExhibit A audio/video recording of the subject events evidence and further conflicting eye witnessaffidavit testimony of Shane Henry wherein the statements made by Thomas Neil Rodgers and Neil

Rodgers, are completely contradicted by the video evidence, the Court must be satisfied that the

accused is not proven guilty beyond a reasonable doubt.


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(3)

CREDIBILITY

18. In a case where credibility is important, the trial judge must acquit the accused in twosituations. First, if the Court believes the accused; Second, if the Court does not believe the

accused's evidence, but still has a reasonable doubt as to his guilt after considering the accused's

evidence, in the context of the evidence as a whole. In this case before the court, what better

evidence could be tendered, than a video recording of the event in question, so that the Court can

consider for itself objectively what occurred April 10, 2012, between Neil Rodgers and Andre

Murray?

19. Regarding the issue of credibility, a trial judge must consider and decide on the questionof credibility along these lines:

First, if the Judge believes the evidence of the accused, obviously the Court mustacquit the defendant.

Second, if the Judge does not believe the testimony of the accused, but is left inreasonable doubt by it, the Court must acquit.

Third, even if the Judge is not left in doubt by the evidence of the accused, the judgemust ask themselves the question of: whether, on the basis of the evidence which the

Judge does accept, the Judge is convinced beyond a reasonable doubt by that

evidence of the guilt of the accused.

20. This formula must be followed, and the requirement that the Crown prove the guilt of theaccused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort

should be made to avoid mistakes on this basic (beyond a reasonable doubt) principle.

21. The admission of evidence following a biased Investigation would violate the libertyinterests of the accused, in a manner, that is not in accordance with the principles of fundamental

justice under s. 7, or would violate the guarantee of a fair trial under s. 11(d) of the Charter. In

this matter Andre Murray verily believes evidence was unfairly obtained and or consequentially

its admission would be unfair, because it was obtained in a manner that would violate a Charter

guarantee. As in other cases involving broad concepts like fairness and principles of

fundamental justice, one is not engaged in absolute or immutable requirements; these concepts

vary with the context in which they are invoked. We must be mindful that a constitutional


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Charter rule may be evoked and or adopted to ensure that our current system of obtaining

evidence is so devised, as to ensure that a guaranteed right is respected, as a matter of course.

22. In R. v. Lake, the Court, in writing about the matter, of a case where credibility isimportant, the trial judge reiterated that the rule of reasonable doubt applies to that issue:

The W.(D.) Tests

[12] In W.(D.), at pp. 757-58, Justice Cory discussed the appropriate jury instructionin a case which depends on credibility:

In a case where credibility is important, the trial judge must instruct thejury that the rule of reasonable doubt applies to that issue. The trial judge should

instruct the jury that they need not firmly believe or disbelieve any witness or set

of witnesses. Specifically, the trial judge is required to instruct the jury that theymust acquit the accused in two situations. First, if they believe the

accused. Second, if they do not believe the accused's evidence but still have a

reasonable doubt as to his guilt after considering the accused's evidence in the

context of the evidence as a whole. SeeR. v. Challice (1979), 45 C.C.C. (2d) 546(Ont. C.A.), approved inR. v. Morin, supra, at p. 357. [Justice Corys emphasis]

Ideally, appropriate instructions on the issue of credibility should be given,

not only during the main charge, but on any recharge. A trial judge might well

instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously youmust acquit.

Second, if you do not believe the testimony of the accused but you

are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the

accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by

that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the rechargein this case would be avoided. The requirement that the Crown prove the guilt ofthe accused beyond a reasonable doubt is fundamental in our system of criminal

law. Every effort should be made to avoid mistakes in charging the jury on thisbasic principle.

To the same effectR. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521 at

531-33.


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[13] The trial judge did not say she disbelieved Mr. Lake. The issue is whether she

applied the first W.(D.) principle:

. . . Specifically, the trial judge is required to instruct the jury that theymust acquit the accused in two situations. First, if they believe the accused.

[Justice Corys emphasis]

. . .

. . . First, if you believe the evidence of the accused, obviously you mustacquit.

[14] The verdict depends ultimately on whether there is a reasonable doubt -W.(D.)s second and third questions: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1

S.C.R. 869 at 65. But a positive answer to W.(D.)s first question mandates an acquittal.So the first question is an essential step:R. v. Chittick, 2004 NSCA 135 (CanLII), 2004

NSCA 135 at 23-24. It is fundamental that, when the verdict turns on the accusedscredibility, the trial judges reasons should disclose whether she believes or disbelieves

the accused.

[20] First, a verdict based on a choice of whom to believe may ignore the concept of

reasonable doubt: eg. Saulnier 36-38,R. v. Mah, 42-46. This concern is addressed bythe second and third W.(D.) questions. The trial judge here did not ignore reasonable

doubt. She began:

The Crown must prove the essential elements of the offence beyond a reasonable

doubt.

She concluded:

So considering all of the evidence and as I said considering the heavy burden of

proof I am satisfied that the Crown has indeed met that burden.

Although the trial judge did not cite W.(D.) or its listed principles, she considered the

principle of reasonable doubt.

[21] Second is the concern which arises here. The trial judge may discount the

accuseds testimony just because she has believed the Crown witnesses. The defence is

neutered in the starting gate regardless of how the accused presents or testifies. Theaccused has not really been disbelieved. He has been marginalized. So it is impermissible

to reject the accuseds testimony solely as a consequence of believing the Crown

witnesses. The trier of fact should address both whether the Crown witnesses arebelieved and whether the accused is disbelieved. This is the rationale for W.(D.)s first

question.


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[22] The analysis of both the accuseds testimony and the Crowns evidence is done

with full knowledge of all the evidence that has been adduced at the trial. The first W.(D.)question does not vacuum seal the accuseds testimony for analysis. In W.(D.), p. 757,

Justice Cory citedR. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345which, at pp.

354-55, 357-58, rejected the piecemeal analysis of individual segments of evidence for

reasonable doubt. The point ofW.(D.)s first question is not to isolate the accusedstestimony for assessment, but to ensure that the trier of fact actually assesses the

accuseds credibility, instead of marginalizing it as a lockstep effect of believing Crownwitnesses.

(c) InR. v. Jeng, 2004 BCCA 464 (CanLII), 2004 BCCA 464, at 37, Justice Ryanstated:

37 The appellant's first point in his factum is that the trial judge characterizedthe issues as a credibility contest. Where a complainant and an accused give two

different versions of an event, the trier of fact must attempt to resolve the issue of

credibility. To convict, the trier of fact must not only believe the complainant, shemust reject the evidence of the accused.

To the same effect:M.A.L. (B.C.C.A.) at para 44.

(d) InR. v. C.J.L., 2004 MBCA 126 (CanLII), 2004 MBCA 126, at 50-53,60-64, Justice Freedman for the Manitoba Court of Appeal made similar

comments.

R. v. Lake, 2005 NSCA 162 (CanLII), http://canlii.ca/t/1m8c8, paragraphs 12-14,

and 21-22.

23. At the end of the day the core issue to be determined by the Court is whether the evidencesupports the complainants allegations of assault or whether the evidence exonerates the accused. If

in fact the Judge believes Andre Murray to be innocent of assault then no crime took occurred

therefore the Crown will have failed to prove beyond a reasonable doubt that the accused Andre

Murray is guilty as charged. On the other hand if somehow, despite the Affidavit Exhibit A

audio/video evidence provided by witness Shane Henry, which purports an eye witness account by

affidavit testimony in defence of the accused, the Court nevertheless believes the complainant

(despite the absence of any corroborative evidence), furthermore, despite the compelling evidence

to the contrary, further the Court is not left with reasonable doubt, then Andre Murray will be

deemed guilty as charged.


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24. In this case credibility is a fundamental issue and the case will be decided on the balance ofthe evidence of the complainant versus the evidence of the accused. The complainant is providing

no evidence other than bald face assertions, which are completely contradicted by the substantive

material, Affidavit Exhibit A Evidence which is an audio video recording of the events which

transpired in totality, further, material audio/video evidence and eyewitness testimony in favour of

the accused, of the incident, which took place on April 10, 2012, between Neil Rodgers and Andre

Murray. The affidavit supporting the videos evidence provided by eyewitness Shane Henry in

support of Andre Murray, corresponds with the Video which any objective observer watching the

video can see, so no more needs to be said regarding his testimony.

25. The words of Trina Rodgers as uttered by telephone, indicated to FREDERICTON POLICEFORCE dispatch, as their notes are revealing Trina Rodgers's husband is outside fighting with Andre

Murray. Trina Rodgers expressed words which reveal that Trina believed her husband was the one

initiating the exchange, Trina Rodgers did not report to the Police that Andre Murray was outside

attacking her Husband. Please Note the Difference. The April 25, 2012, FREDERICTON POLICE

FORCE CROWN PROSECUTORS REPORT Occurrence Number: 2012-6603, Page 3 states:

Tuesday April 10, 2012 at about 1843 hrs, Cst Brandan Jordan and Cst. Ali Yerxa were

dispatched to 15 Fisher Av., Fredericton, NB for a fight in progress. The complainant, Trina

Rodgers's husband is outside fighting with Andre Murray

26. Trina Rodgers uses words that are again indicative of Neil Rodgers fighting with herneighbour Andre Murray, Please Note this statement indicates Neil Rodgers as the initiator. The

statements are provided in FREDERICTON POLICE FORCE CALL HARDCOPY, rep: 10 Apr.

2012 18:42:30. Page 1:

Remarks: Husband is outside fighting with her neighbour Andre Murray. Cannot see them

any more. 1845 Hrs her husband Neil Rodgers is back inside the house he says he has a

sore jaw. Andre gone into his house.

27.Trina Rodgers own words, as reported to FREDERICTON POLICE FORCE, in the April

25, 2012, FREDERICTON POLICE FORCE CROWN PROSECUTORS REPORT, indicate

evidence which is contrary to the story, being painted in Neil Rodgers, statement April 10, 2012, on

the day of the alleged event.

(4)


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KEY POINTS IN THE TESTIMONY OF NEIL RODGERS GIVEN APRIL10 2012.

28. The reason for Andre Murrays appearance on the Rodgers property April 10, 2012, wasexpected therefore not a surprise to Neil Rodgers and or Trina Rodgers. Neil Rodgers claims on

page 1 of the Statement Witness/Victim Documents Case 12- 6603: Andre is known to me and is

not to be on my property per a decision from Judge Clendenning. The fact is, there is no such

decision from Madame Justice Clendening, for that reason banning Andre Murray from Neil

Rodgers Property. However, it is a fact that April 10, 2012, Andre Murray was serving Court of

Appeal Documents upon Defendant / Intended Respondent Trina Rodgers. Furthermore, the herein,

subject Appeal documents was regarding Andre Murrays Appeal, from Madam Justice Judy

Clendenings refusal to Order Defendant Trina Rodgers to pay costs for previous, acts of Evasion of

Service of Court documents and further unjustifiably endangering the safety and well being of

Plaintiff Andre Murray and other process servers, hired for the job, by unreasonably calling

FREDERICTON POLICE FORCE, each time Court documents were attempted service upon Trina

Rodgers residence (by any process Server). Interestingly enough, in the April 10, 2012, the

substantive material, Affidavit Exhibit A Evidence which is an audio video recording of the

events which transpired, provided by witness Shane Henry, we hear Process Server Andre Murray

announcing that he has Court Documents to Process Serve upon Trina Rodgers, yet Trina Rodgers

visibly runs towards and into the house, again avoiding Process Service (further substantiating

Andre Murrays claims of Trina Rodgers taking action to avoid Process service). This avoidance of

Process service is insincere behaviour, on the part of Trina Rodgers.

29. Please Note: Andre Murray has requested an investigation into the history of conduct byNeil Rodgers and Trina Rodgers, regarding their fixation upon the accused Andre Murray and the

29 and 31 Marshall Street, Fredericton New Brunswick, Property, that this charge of assault is just

the newest expression of a malicious manipulation of the justice system, for their own nefarious

ends.

30. The fact that Neil Rodgers and Trina Rodgers were aware of the reason Andre Murray wason their property April 10, 2012, is confirmed by the submitted April 25, 2012, FREDERICTON

POLICE FORCE CROWN PROSECUTORS REPORT Occurrence Number: 2012-6603, Page 4

which states: Neil Rodgers, husband of Trina Rodgers, provided a written victim statement of the


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following. Neil Rodgers of 15 Fisher Ave. was in the yard of the a.l doing yard work, when a male;

well known to him as Andre Murray came on to his property and began to walk towards his house.

Rodgers assumed Murray was looking for his wife Trina Rodgers as he had been trying to serve her

Court papers with respect to a on going civil matter he is suing her for.

31. The civil litigation, File number F/C/45/11 against Neil Rodgers and Trina Rodgers isregarding the tortious action of both Defendant Neil Rodgers and Defendant Trina Rodgers

providing fraudulent misrepresentation to members of FREDERICTON POLICE FORCE, which

resulted in two separate encounters, both created by the Rodgers initiating telephone calls, which

misinformed the Police, resulting in Andre Murray being sought out, attacked, assaulted, battered,

arrested, pepper sprayed and injured in the process, then released without charge. These incidents

occurred because of the Self Proclaimed Police Informants Neil and Trina Rodgers having provide

false information by telephone to members of FREDERICTON POLICE FORCE. The

STATEMENT OF DEFENSE AND COUNTER CLAIM, File number F/C/45/11 filed by Neil

Rodgers and Trina Rodgers is submitted as Exhibit F, of the Affidavit of Andre Murray Dated

February 26, 2013.

32. Neil Rodgers claims on page 1of 1, in the Statement Witness/Victim Documents Case 12-6603, Dated April 10, 2012, written on the day of the alleged assault, I asked Andre to leave my

property, He ignored me, walked past me and hit me in my left shoulder with his shoulder. The

Affidavit Exhibit A audio/video evidence provided by witness Shane Henry, completely

contradicts Neil Rodgers statement that Andre Murray hit Neil Rodgers on his left shoulder with

Andre Murrays shoulder. This herein above claimed exchange by Neil Rodgers did not in fact

occur. It is a lie, carefully crafted to give the appearance of justification of Neil Rodgers assaulting

Andre Murray while at the same time, accusing Andre Murray of being the instigator.

33.Neil Rodgers claims on page 1of 1, in the Statement Witness/Victim Documents Case 12-

6603, Dated April 10, 2012, February written on the day of the alleged assault, He was walking

towards Trina who was on her way into the house to call the Police. The reason why Neil Rodgers

knows that Andre Murray as walking towards Trina Rodgers, specifically is because Andre Murray

audibly announced, repeatedly, why Andre Murray was there, which was to serve Court documents

upon Trina Rodgers. This is plainly seen and heard in the herein above mentioned subject


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audio/video evidence provided to the Court. Again this fact is corroborated by Neil Rodgers own

statement to the Police Rodgers assumed Murray was looking for his wife Trina Rodgers as he had

been trying to serve her Court papers with respect to a on going civil matter he is suing her for

April 25, 2012, FREDERICTON POLICE FORCE CROWN PROSECUTORS REPORT

Occurrence Number: 2012-6603, Page 4.

34. Neil Rodgers, has not been claiming to have experienced a form of amnesia. Themotivation of a witness in testifying, including his possible self-interest and any bias or prejudice

against the defendant, is one of the principal subjects the Court must consider. Selective memory

is evidence of bias or prejudice against the defendant, and reveals to the Court, evidence of the

motivation of a witness.

35. Conclusion: Neil and Trina Rodgers, in advance knew why Andre Murray was on theproperty that April 10, 2012, afternoon, which was to process serve Court Documents upon Trina

Rodgers. Evasion of service is not a responsible reaction to being process served Civil Court

Documents. Assaulting a Process Server, is not a rational, reaction to being peacefully process

served Civil Court Documents. A reasonable person would not feel threatened by a Process Server

handing off Court Documents or leaving them at the door. It is in fact Neil Rodgers who without

the consent of Andre Murray, applied force intentionally to Andre Murray, directly, without

reasonable justification.

36. Considering all this, the Court should conclude that here is no credibility whatsoever, tothe testimony of Neil Rodgers.

(5)

KEY POINTS IN THE TESTIMONY OF THOMAS NEIL RODGERS APRIL 23, 2012.

37. Thomas Neil Rodgers claims on page 1of 2 and 2of 2, in the Statement Witness/VictimDocuments Case 12- 6603, Dated April 23, 2012 (13 days after the alleged assault): On Tuesday,

April 10th, I witnessed my father (Neil) trying to remove Andre from the property. I moved to

another part of the house to get a better view, and then I saw Andre punch my father in the face. I

then went outside to protect my father, but by then, Andre had stepped off the edge of the property .


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38. The video evidence provided for the Courts review, completely contradicts Thomas NeilRodgers statement that Thomas Neil Rodgers saw Andre punch my father in the face.

Q5: Which hand did Andre Punch your Father with? A5: I believe his left Q6: Where on your Fathers face did Andre Punch? A6: On his cheek, on the left side.

39. The herein above provided excerpt of Thomas Rodgers is absolutely absurd, as a lefthanded person, and or a left handed punch could never be reasonable delivered to the left side of

any recipients face,

40. The details provided by Thomas Neil Rodgers are completely contradicted by the hereinabove subject audio/video witness evidence provided for the Courts review. Nowhere in the subject

audio/video do we see Andre Murray punch Neil Rodgers in the face.

41. The eye witness evidence provided by Thomas Neil Rodgers is biased, self-serving,misrepresentation, which is contradicted by the subject audio/video witness evidence provided for

the Courts review:

Q7: Did your father fight back? A7:From what I saw, my father continued to try to remove Andre from the property as

was before Andre hit him, but I never saw my father hit Andre.

42. Thomas Neil Rodgers is certain that my father continued to try to remove Andre fromthe property, yet never saw my father hit Andre. The question we are left with is how did

Thomas Neil Rodgers see his father continued to try to remove Andre from the property unless

Andr Murray was leaving voluntarily, or Neil Rodgers was using force to remove Andre from

the property.

43. The testimony provided by Thomas Neil Rodgers is inconsistent; incompatible self-servingand contradictory:


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Q8: What do you mean you went outside to protect your father? A8: I went out in case Andre started hurting my father, and my fathers safety was being

threatened.

44. Merriam-webster.com, provides the definition of Freudian slip as: a slip of the tonguethat is motivated by and reveals some unconscious aspect of the mind (http://www.merriam-

webster.com/dictionary/freudian%20slip ). It is accepted that a Freudian slip is a verbal mistake

that is thought to reveal a repressed belief, thought, or emotion. Simply put, the repressed truth

slips out, through a Freudian slip of the tongue.

45. Thomas Neil Rodgers claims he has already witnessed his father get allegedly punched inthe face, yet he is trying to get out side in case Andre started hurting my father. Wouldnt a

punch to the face be considered by a rational person as hurting someones father,? The balance

of probability is that this Freudian slip, was most likely expressed, because in truth Thomas Neil

Rodgers did not see Andre Murray punch his father Neil Rodgers in the face.

46. The story by Thomas Neil Rodgers, provided 13 days after the events of April 10, 2012,transpired, was apparently constructed, (on the balance of probabilities/ more likely than not) to

reinforce the untrue, misrepresentation, claims of his father, Neil Rodgers. Thomas NeilRodgers, claimed that On Tuesday, April 10

th, I witnesses my father (Neil) trying to remove Andre

from the property, but thataccounting conveniently leaves out, what any eye witness, let alone, a

witness recording the events of the April 10, 2012, by a audio/ video camera, would see, that

which is fact, it was Neil Rodgers who was the aggressor, repeatedly without the consent of Andre

Murray, applying force intentionally to Andre Murray directly, by grabbing, pulling, pushing,

choking and striking Andre Murray repeatedly. Completely leaving out any of these incidents

namely the grabbing, pulling, pushing, choking and striking, of Andre Murray by Neil Rodgers is

an omission that goes to the core of the credibility of the witness statement of Thomas Neil

Rodgers. How could Thomas Rodgers only have seen a punch which did not, in fact happen?

47. Thomas Neil Rodgers, has not been claiming to have experienced a form of amnesia,called selective memory loss, when the victim loses certain parts of his/her memory. The


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motivation of a witness in testifying, including his possible self-interest and any bias or prejudice

against the defendant, is one of the principal subjects the court must consider. Selective memory

is evidence of bias or prejudice against the defendant, and reveals to the Court, evidence of the

motivation of a witness. How could Thomas Neil Rodgers know that his father Neil Rodgers was

trying to remove Andre Murray from the property but not be able to see how Neil Rodgers was

accomplishing this task, namely through the grabbing, pulling, pushing, choking and striking, of

Andre Murray?

48. Considering all this, the Court should conclude that there is no credibility to thetestimony of Thomas Neil Rodgers.

(6) USE OF FORCE

49. Section 37(1) of the Criminal Code allows that some one may be justified in using forceto defend himself or any one under his protection from assault, if he uses no more force than is

necessary to prevent the assault or the repetition of it. The proportionality requirement is

designed to prevent those who are aggressive and unwilling to comply with reasonable societal

limitations from relying on their minimal degree of self-control.

50. Criminal Code of Canada, Section 37, Preventing assault:37. (1) Every one is justified in using force to defend himself or any one under his

protection from assault, if he uses no more force than is necessary to prevent the assault

or the repetition of it.

51. R. v. Szczerbaniwicz, the Court defined the use of force in the defence of property andhow persons can be justified in using it. In general, the great principle of the common law, that

the use of force in such circumstances is subject to the restriction that the force used is necessary;

that is, that the harm sought to be prevented could not accomplished by less violent means:

[18] Section 39(1) is found in the Criminal Code together with other provisions settingout how the use of force in the defence of property and persons can be justified. While s.

39(1) itself has yet to be interpreted by this Court, there is helpful analogous

jurisprudence dealing with these other provisions, most of which use similar or identical

language to the phrase no more force than is necessary found in s. 39(1). Nothing in


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the language of s. 39(1) suggests that the meaning of the words no more force than is

necessary is different from these other provisions.

[19] One of the early and cogent examinations of the meaning of the phrase isfound in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). In Baxter, several of the

Criminal Codes defence of property and person provisions were at issue, including s.34(1) (dealing with self-defence against unprovoked assault) and s. 41(1) (dealing withdefence of house or real property). In interpreting these provisions, Martin J.A.

observed:

The sections of the Code authorizing the use of force in defence of a person or

property, to prevent crime, and to apprehend offenders, in general, express in

greater detail the great principle of the common law that the use of force in such

circumstances is subject to the restriction that the force used is necessary; that is,that the harm sought to be prevented could not be prevented by less violent means

and that the injury or harm done by, or which might reasonably be anticipated

from the force used is not disproportioned to the injury or harm it is intended toprevent . . . . [p. 113]

[20] The proportionality approach has more recently been characterized as

an inquiry into whether the force used was reasonable in all the circumstances, as

Charron J. confirmed inR. v. Gunning, 2005 SCC 27 (CanLII), 2005 SCC 27, [2005] 1

S.C.R. 627, at para. 25, a case involving s. 41(1). (See also:R. v. George2000 CanLII5727 (ON CA), (2000), 145 C.C.C. (3d) 405 (Ont. C.A.), at para. 49;R. v. McKay, 2009

MBCA 53 (CanLII), 2009 MBCA 53, 246 C.C.C. (3d) 24, at para. 23.)

[21] The reasonableness of all the circumstances necessarily includes the

accuseds subjective belief as to the nature of the danger or harm, but the objectivecomponent of the defence is also required: the subjective belief must be based onreasonable grounds. (See: McKay, at paras. 23-24; George, at paras. 49-50; R. v. Bornwith a Tooth 1992 ABCA 244 (CanLII), (1992), 76 C.C.C. (3d) 169 (Alta. C.A.), at p.

180; R. v. Kong, 2005 ABCA 255 (CanLII), 2005 ABCA 255, 200 C.C.C. (3d) 19, atparas. 95-100, appeal allowed on other grounds, 2006 SCC 40 (CanLII), 2006 SCC 40,

[2006] 2 S.C.R. 347.)

R. v. Szczerbaniwicz, 2010 SCC 15 (CanLII), [2010] 1 SCR 455,

http://canlii.ca/t/29k4c para 18 21.

52. R. v. Kong, to Court expressed the right of self-defence operates as a justification, notan excuse, for what would otherwise be an unlawful act of assault, the theory essentially being

that the accused is in the right and the victim got what he or she deserved: The key to escaping

criminal culpability is that the persons actions must not have exceeded permissible limits. Those

limits are to be found in the various statutory provisions under which self-defence can be


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properly invoked. The two primary ones running through all the self-defence sections under the

Code continue to be reasonableness and proportionality.

[5] The defence of self-defence, codified in various sections of the Code, is

based on an enduring, historic principle: people sometimes have no choice but to useforce and possibly even deadly force to defend themselves. When this happens, theperson acting in self-defence is considered not criminally liable. In other words, self-

defence operates as a justification, not an excuse, for what would otherwise be an

unlawful act of assault, the theory essentially being that the accused is in the right and the

victim got what he or she deserved.[2]

[6] However, since 1328, when self-defence was first recognized as a legal

concept,[3]

it has never been the case that a person has a right to use any degree of forcehe or she wishes, no matter how extreme and no matter the circumstances, in claimed

self-defence. The key to escaping criminal culpability is that the persons actions must

not have exceeded permissible limits. Those limits are to be found in the various statutoryprovisions under which self-defence can be properly invoked: Brisson, supra. The two

primary ones running through all the self-defence sections under the Code continue to be

reasonableness and proportionality. Admittedly, the present state of the law on self-defence may be fairly characterized as complex and confusing. But that does not justify

pushing the acceptable boundaries of self-defence further than those tolerable in and

accepted by civil society in Canada. Limits still remain as to when and whether self-defence can be legitimately raised as a justification for the use of force.

R. v. Kong, 2005 ABCA 255 (CanLII), http://canlii.ca/t/1lc41 para 5 and 6.

53. Considering reasonableness and proportionality, it is unreasonable and disproportionatethat simply walking towards someones house could be considered assault or threat of assault.

Especially when Neil Rodgers knew, that the reason Andre Murray was attending his civic

address, was for the purpose of Process Serving Court Documents. Herein above mentioned

subject evidentiary audio/video, Exhibit A of Affidavit provided by eye witness Shane Henry an

account of the April 10, 2012, process Service encounter, which reveals that Andre Murray,

Court Documents in hand, announced, his purpose, walked up to the house, kept the documents

in his hand all the way to the house, left the documents and walked away, back the way he came.

54. Neil Rodgers claims on page 1 of the Statement Witness/Victim Documents Case 12- 6603I asked Andre to leave my property. He ignored me, walked past and hit me in my left shoulder

with his shoulder. herein above mentioned subject evidentiary audio/video, Exhibit A of


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Affidavit provided by eye witness Shane Henry clearly indicated that this claim that Andre

Murray hit me in my left shoulder with his shoulder is false. Neil Rodgers is falsely claiming

that Andre Murray was the aggressor, when the video evidence show clearly the opposite.

Throughout, the entire April 10, 2012, Service Video we see, Neil Rodgers push, pull, hit, punch,

and twice violently chokes process server Andre Murray and even throw Andre Murray to the

ground. Neil Rodgers continuously attacks Andre Murray, while Andre Murray walks up to the

House entrance and leaves Court Documents, for Trina Rodgers, then Andre Murray leaves the

way he came.

55. The Crown cannot reasonably condone or justify someones action of pushing, pulling,hitting, punching, choking and throwing a person to the ground who is merely (and know by

Neil Rodgers to be) process serving Court Documents. Pushing, pulling, hitting, punching, andchoking a person must be more force than is necessary to prevent the mere belief that an

assault may take place. Through the whole subject exchange, except when process server

Andre Murray arrived within 10 feet of the front door at all other times however did not get

within 20 feet of Trina Rodgers, who ran immediately behind closed doors, within a house,

evading Process Service of Court Documents (as can be plainly seen in the video evidence).

56. Neil Rodgers claims on page 1 of the Statement Witness/Victim Documents Case 12- 6603I grabbed Andre by the shoulders to escort him off my property.He then punched me in the

right jaw with his closed fist or forearm. It stunned me and I could taste blood in my mouth. He

kept walking toward my wife. The only strike Neil Rodgers claims to have received in the

whole encounter is apparently in response to Neil Rodgers admittedly grabbing Andre Murray by

the shoulders. Neil Rodgers admits to initiating the physical exchange (grabbing Andre Murray),

and if the Court somehow concludes (contrary to the herein subject evidentiary audio/video,

Exhibit A of Affidavit provided by eye witness Shane Henry) that Andre Murray did respond by

hitting Neil Rodgers, the strike by Andre Murray would have been in self defense.

57. Reasonableness and proportionality, must be measured on an objective standard, as itwould violate fundamental principles of criminal law to do otherwise. Considering

reasonableness and proportionality the actions and use force by Andre Murray during the April

10, 2012, encounter were reasonable and proportional in the circumstances. The actions and use


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of force, namely pushing, pulling, hitting, punching, choking and throwing a person to the

ground, by Neil Rodgers were not reasonable or proportional in the circumstances. The herein

subject evidentiary audio/video, Exhibit A of Affidavit provided by eye witness Shane Henry,

plainly demonstrates that any contact from Andre Murray to attacker Neil Rodgers, would have

reasonably been in self defense.

(7)

SELF DEFENSE

58. Considering Self defence, the Court in R. v. Kong provided the following insight inproportionality and its consideration:

[106] In R. v. Latimer2001 SCC 1 (CanLII), [2001] 1 S.C.R. 3, the Supreme Court ofCanada concluded that the proportionality requirement as it related to the defence of

necessity must be measured on an objective basis. In my view, the policy reasons for this

conclusion apply with equal force to claims of self-defence under s. 34(1). This is

particularly so since the s. 34(1) proportionality requirement is arguably stricter given thespecific wording in the Code than the proportionality requirement under the law of

necessity. As the Supreme Court stated inLatimer, supra at para. 34:

The third requirement for the defence of necessity, proportionality, must be

measured on an objective standard, as it would violate fundamental principles of

criminal law to do otherwise. Evaluating the nature of an act is fundamentally adetermination reflecting societys values as to what is appropriate and what

represents a transgression.... A subjective evaluation of the competing harms

would, by definition, look at the matter from the perspective of the accusedperson who seeks to avoid harm, usually to himself. The proper perspective,

however, is an objective one, since evaluating the gravity of the act is a matter of

community standards infused with constitutional considerations.

R. v. Kong, 2005 ABCA 255 (CanLII), http://canlii.ca/t/1lc41 para 5

and 6.

59.

Self Defense requires necessity, proportionality, to be measured on an objective standard,as it would violate fundamental principles of criminal law to do otherwise. Evaluating the nature

of an act is fundamentally a determination reflecting societys values as to what is appropriate

and what represents a transgression. A subjective evaluation of the competing harms would, by

definition, look at the matter from the perspective of the accused person who seeks to avoid

harm, usually to himself. The proper perspective, however, is an objective one, since evaluating


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the gravity of the act is a matter of community standards infused with constitutional

considerations.

60. The actions and use of force, namely pushing, pulling, hitting, punching, choking andthrowing a Andre Murray to the ground, by Neil Rodgers were not reasonable or proportional in

the circumstances and cannot be considered an act, which is in tune with community standards

infused with constitutional considerations. It is disproportionate and against societies standards

for Neil Rodgers to applying force intentionally to, Andre Murray directly, by grabbing, pulling,

pushing, choking and striking Andre Murray repeatedly for nothing more than peacefully serving

Court Documents. Avoidance of Court Document Process Service is no recognized defense to

assault.

61. It is proportionate and justified for Andre Murray to stop or resist Neil Rodgers frompossibly fatally choking Andre Murray to death, or resist being repeatedly violently pushed or

pulled to the ground. The herein subject evidentiary audio/video, Exhibit A of Affidavit provided

by eye witness Shane Henry, plainly demonstrates that any contact from Andre Murray to

attacker Neil Rodgers, would have been made in self defense. Considering all this, the Court

should conclude that if Andre Murray did touch Neil Rodgers, that this contact was only on a self

defense basis, therefore, the Court should acquit Andre Murray of the Charge of assault.

(8)

THE CROWN MUST PROVE

62. Under section 265(1)(a) of the Criminal Code of Canada, as in the subject case of analleged April10, 2012, assault, by Andre Murray upon Neil Rodgers, the Crown would have to

prove beyond a reasonable doubt, that Andre Murray without the consent of Neil Rodgers,

applied force intentionally to Neil Rodgers, directly or indirectly, and that the subject force wasnot in self defense.

63. Or alternatively, under section 265(1) (b) of the Criminal Code of Canada, again in thecase of an alleged April10, 2012, assault, by Andre Murray upon Neil Rodgers, the Crown would

have to prove beyond a reasonable doubt, that Andre Murray attempted or threatened, by an act


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or a gesture, to apply force to Neil Rodgers, moreover, that Andre Murray had caused Neil

Rodgers to believe on reasonable grounds that Andre Murray had present ability to effect his

purpose; and that the subject force was not in self defense.

64. For convenience Section 265(1) is reproduced below:265. (1) A person commits an assault when

a. (a) without the consent of another person, he applies force intentionally to thatother person, directly or indirectly;

b. (b) he attempts or threatens, by an act or a gesture, to apply force to anotherperson, if he has, or causes that other person to believe on reasonable grounds that

he has, present ability to effect his purpose; or

65. Considering the entirety of the evidence, and the surrounding circumstances, consideringthe law on point, it is rationally impossible for the Crown to prove the case of assault against

Andre Murray before the Court. The administration of Justice would be brought into disrepute if

a verdict other than an acquittal of Andre Murray on the charges of Assault were entered by the

Court.

(9) CONCLUSION

66. There has not been any evidence provided to the Court which establishes a credible rationalbelief that Neil Rodgers or Trina Rodgers were in any danger. Considering reasonableness and

proportionality, and all the surrounding circumstances and evidence provided by the Crown and

the defence, including Affidavit Exhibit A audio/video evidence, it is unreasonable for Neil

Rodgers to believe a real threat existed, and it is disproportionate to attack a process server, who

is known to be merely process serving Court documents.

67. However, Neil Rodgers and Trina Rodgers have a well-established self-proclaimedinterest in avoiding Court Document Process Service. Avoidance of service of Court Documents

cannot be a justification to assault a peaceful process server. If the Court concludes that Andre

Murray did touch Neil Rodgers, the Court must also conclude, having considered the evidence,

Andre Murray has only ever acted in a manner towards Neil Rodgers out of self-defence and in


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doing so, could not possibly have inflicted any harm upon Neil Rodgers as must be self evident

to anyone viewing the subject audio/video evidence.

68. Upon reviewing the herein subject evidentiary audio/video, Exhibit A of Affidavitprovided by eye witness Shane Henry the objective observer sees that it was in fact Neil Rodgers

who was the aggressor, repeatedly without the consent of, Andre Murray, applying force

intentionally to, Andre Murray directly, by grabbing, pulling, pushing, choking and striking

Andre Murray repeatedly. Moreover, Neil Rodgers own Witness Statement clearly indicates that

Neil Rodgers was aware that Andre Murray would be attending his civic address for the purpose

of merely attempting to serve Court Documents upon Trina Rodgers, it is unreasonable and

disproportional that a man (Process Server serving Court Documents) should be attacked for

merely, peacefully serving Court Documents according to the New Brunswick Rules of Court.

69. First, if the Judge believes the evidence of the accused, obviously the Court must acquitthe defendant.

70. Second, if the Judge does not believe the testimony of the accused, but is left inreasonable doubt by it, the Court must acquit.

71. Third, even if the Judge is not left in doubt by the significant substantive materialevidence provided in defence of the accused, the judge must determine: having considered all

evidence which the Judge reviewed, that the Judge is convinced beyond a reasonable doubt of

the guilt of the accused, if not the Court must acquit.

72. New Brunswick Provincial Court Rules are intended to provide for the just determinationof every criminal and quasi-criminal proceeding, and shall be liberally construed to secure

simplicity and uniformity in procedure, fairness in administration, the elimination of

unjustifiable expense and the avoidance of delay. Where an accused is not represented by

counsel, anything that these rules require or permit counsel to do shall not be mandatory for the

unrepresented accused. A failure to comply with New Brunswick Provincial Court Rules is an

irregularity and does not render a proceeding or a step, document or order in a proceeding a

nullity, therefore the court may grant all necessary amendments or other relief in accordance


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Brief - Assault March 4 2013

Documents

Transcript of Brief - Assault March 4 2013