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Cross-examination of Tamara Cruz (an evasive witness) | Examples Of Favourable Verdicts

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ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
NELSON MANDELL
PROCEEDINGS AT TRIAL

BEFORE THE HONOURABLE MR. JUSTICE BOULDER
on May 30th, XXXX, at OTTAWA, Ontario.
**********
APPEARANCES:
S. Foster
Counsel for the Crown
T. Pain Counsel for the Accused
**********
TAMARA CRUZ RE-SWORN
EXAMINATION-IN-CHIEF BY MS. FOSTER
Q: Ms. Cruz I’m going to be very brief with you. Just to clarify a couple of things, I understand that certainly you had the opportunity to read your evidence, the transcript to refresh your memory. Correct ma’am?
A: Yes I did.
Q: In fact I was the one that gave you that transcript?
A: Yes you did.
Q: All right, but we did not speak about the evidence, correct?
A: No.
Q Okay. Now Ms. Cruz, since the time that you were here in court last time, which was February of this year until today, did you have any contact whatsoever with Nelson Mandell?
A: No I haven’t.
Q: Or for that matter his mother?
A: No I have not.
Q: Okay so no one has contacted you to speak about the evidence?
A: No.
Q: Okay. Now with respect to your criminal record, the convictions that you’ve told us about on the last occasion, you told us about, you have convictions – certainly two convictions for theft under $1000.00, but you also indicated to Mr. Pain that there could be more. Correct?
A: Correct.
Q: You remember that?
A: Yes.
Q: And you don’t remember how many. It could be as high as 10 but you really don’t remember?
A: Yes.
Q: And you said that…
A: It was…okay.
Q: …go ahead.
A: I know it’s about three.
Q: Okay, all right, and you’ve told us certainly that most of the time is either probation, a fine and one of them you served one day in jail correct?
A: Yes.
Q: Okay. Did you ever see your criminal record?
A: Yes.
Q: All right and who showed that to you?
A: I went to get a police record.
Q: Right? When was that?
A: Probably a year or so ago.
Q: All right. Did I ever show you your criminal record, me myself?
A: No.
Q: Okay. I’m going to show you a document. That is your criminal record and this was provided to Mr. Pain between February and today’s date. You are Tamara Maria Cruz?
A: Yes.
Q: All right. 1982, January 29 in Toronto, you were convicted of theft under $200.00 and you paid a fine of $35.00.
Is that correct?
A: Yes.
Q: All right. 1991, in Toronto, you convicted of theft under $1000.00. You served one day?
A: Yes.
Q: June 1st of 1993 in Toronto, you were convicted of theft under $1000.00 and you were sentenced, $300.00 fine?
A: Yes.
Q: Plus probation of one year?
A: Yes.
Q: And last conviction was for attempt fraud under
$5000.00 March 20th of 1997 in Toronto where you received probation of 12 months. Is that correct?
A: Yes.
Q: Do you see any other convictions?
A: No.
Q: All right. Is this your record Ma’am?
A: Yes.
MS. FOSTER : If we can file this as the next Exhibit Sir. I believe it’s Exhibit Eight.
THE COURT : Yes, Exhibit Eight.
EXHIBIT NUMBER EIGHT – Criminal record of Tamara Cruz -produced and marked.
Q: You’re not in trouble with the law are you?
A: No.
Q: Okay. So nothing has transpired between February and today’s date. Right ma’am?
A: No.
MS. FOSTER : Thank you.
THE COURT : Mr. Pain?
CROSS-EXAMINATION BY MR.PAIN
Q: The criminal record that was just marked as an exhibit, is that your complete criminal record?
A: Yes.
Q: It’s an accurate record is it?
A: I would say so yes.
Q: There’s nothing else on your record?
A: No.
Q: And you said that since the last date, you went to the police station to get a copy of your record?
A: I would say – yeah.
Q: Okay, so which police station did you go to?
A: On Rossland.
Q: Okay and how did you go about getting your criminal record?
A: I applied for it.
Q: When did you apply for it?
A: I can’t remember the exact date but I went and I asked to get a copy of it.
Q: Okay and did you apply for it after the last hearing date? The last day you testified in court?
A: No, before.
Q: How much before?
A: Quite a while back
Q: A month before?
A: Probably some time, maybe a year or two. It was a while, a long time ago.
Q: You applied a couple of years before?
A: I was – I would say about that.
Q: And was there an application….
A: I don’t remember the exact date.
THE COURT : I’m sorry?
A: I don’t remember the exact date I applied but I did have it.
Q: You applied a couple of years ago?
A: Yeah.
Q: And how did you apply? Was there an application form?
A: You go to the police station and you apply for it. I guess you have to sign a form or show then your driver’s licence in order to make sure your address is correct.
Q: You guess you have to sign a form. Did you sign a form?
A: Yes I did sign a form.
Q: And you went to this police station on Rossland?
A: Yeah.
Q: And that’s where you got the form?
A: Yeah.
Q: And that’s where you signed it?
A: Hm-hmm.
THE COURT: Indicating yes for the record.
A: Yes.
MR. PAIN: I’m sorry Your Honour.
Q: And it took – did they notify you that this record was ready? Is that why you went back to the police station?
A: Yes.
Q: And it took them over two years to do that?
A: No….
MS. FOSTER: I don’t believe she indicated that Your Honour. I don’t know where Mr. Pain is getting that information. She indicates she’s got record last time when she went to the police station. She didn’t say that she received the form. She saw it. There’s a difference here.
MR. PAIN : I believe I asked her Your Honour, how she went about getting it. She said she applied. I asked her how and when, she said she filled out the form, it was a couple of years ago. I don’t think my question is leading in any way.
A: But I said I did fill out a form when I went to the station.
THE COURT : Sorry.
MR. PAIN : I don’t think my question is – I’m not trying to confuse her or mislead her. My question is – well I can re-phrase the question.
Q: So you filled in an application a couple of years ago. Is that correct?
A: Yes.
Q: And then what prompted you to go to the police station?
A: I needed it at the time.
Q: Okay. Well did you ever get a response back from this application that you filled out?
A: Yes I got a copy of it.
Q: When did you get a copy of it?
A: When I applied for it, at the time I applied for it, I received a copy.
Q: How long did that take?
A: I’m not sure of the exact time, but you have to go and come back. You don’t get it right away.
Q: Did they mail it to you or did you pick it up?
A: I picked it up.
Q: So then why did you have to go back again?
A: You don’t get it right away. You have to always return to get it. You don’t get it right away.
Q: Well this is what I’m getting at. So you applied over two years ago and what – is what you’re telling me, it took two years to get….
A: No, I didn’t….
THE COURT : No, the witness is saying she needed -two years ago for some purpose she needed a record. She went in and made what sounds like a standard criminal records application check that you have to do if you want to be a volunteer in the community or something like that.
MR. PAIN: I see.
THE COURT: They said she had to go back and pick it up.
A: Pick it up.
Q: Okay, I’m sorry. I misunderstood. So then you picked up – so when was this visit to the police station when you got your record?
A: A couple years ago. I don’t the exact date but a couple years ago I did that.
Q: So there was no visit between the last court date and today?
A: No.
Q: Okay, that’s where I misunderstood. I’m sorry.
A: No, you don’t have to say that.
Q: And today before Ms. Foster showed you a copy of your record, you said it was about three?
A: Yeah because I didn’t know exactly if it was three or four. I know approximately, it was about that.
Q: On the last occasion you said it could be ten?
A: Yeah because I wasn’t sure of the amount that was on the record.
Q: Then what prompted you to believe today that it was only three?
A: Because I know I should have – in the process of getting a Pardon for all them so I just thought it could be three, it could be four, it could be ten, that’s what I said.
Q: But you thought it was three?
A: Yes.
Q: Certainly you’d agree with me ten is a lot more than three?
A: Well it’s on the record how much I have.
Q: But last time you said it could be ten?
A: I didn’t have a copy in front of me so that was just an estimate.
Q: And did you believe it was actually ten at the time you said that?
A: No I knew that it was not.
Q: You knew it wasn’t ten?
a: Right.
Q: But you said it could be ten?
A: Yeah, because you keep asking me….
MS. FOSTER : Well to be fair….
THE COURT : Just a moment, I need to hear from Crown counsel.
MS. FOSTER : Actually that’s what I would say. It should be fair to the witness the way it was worded. It’s no that she said it could be ten, it was after question of Mr. Pain, could it be more than two, could it be more than three, could it more than four, et cetera et cetera, until he said could it be as high as ten, and she says it could be. To be fair to Ms. Cruz that is how it transpired and the way the questions have been worded by Mr. Pain today in my respectful submission is unfair in terms to how she’s presented it on the last occasion.
MR. PAIN : Well that’s fine.
Q: I’ll simply read the questions and answers to you and you tell me. It’s page 94 Your Honour. I’m going to read you this and ask you if you remember the following dialogue Ms. Cruz. Question, “What do you mean there were all about similar offences. How many were there?” Answer, ” There could be more.” I ask, “I’m sorry?” You say, ” There could be more.” Question, “There could be more than two?” Your answer, “Hm-hmm.” Question, “How many more than two?” answer, “Does this have to be brought in to this?” His Honour, “It’s relevant.” You, “Okay.”
THE COURT : Sorry, I’m going to interrupt. I’ll hand this copy down because you’re quoting the better part of a page of transcript. I’ll let the witness have a look at mine. I’ve read it.
Q: Question, “How many more than two?” answer, “Maybe three.” My question, “Maybe more?” answer, “Yes.” “Maybe four?” answer, “Yes.” “Maybe five?”
A: What page are you at?
Q: I’m sorry.
THE COURT : Down towards the bottom of the page.
A: Okay.
Q: Question, “Maybe five?” answer, “Could be ten.” Do you recall saying that? Do you recall that exchange?
A: I could – I say I said that but because of the questions you were asking me I don’t know if things are written here, because you asked me if it could be ten and I said yes, it could be ten. I don’t know how come it’s not there but you asked me more than one, it’s more than two and I said it could be ten. It could be ten convictions.
Q: The next question “Could be ten convictions?” answer, “Hm-hmm.” “Could be 11?” answer, “Not sure.” Now today you agree that you only have four convictions. Is that correct?
A: Well now that I see it on the paper, it’s on the paper, it’s black and white and I can see it’s four.
Q: And were you – are you saying today that you were under the honest belief that you could have ten convictions?
A: No I’m not….
Q: On that day? When you testified last time in court did you honestly believe that you could have had as many as ten convictions?
A: I couldn’t believe that. Because of the questions you asked me, you keep going up in number and I said, you said one, two three, I said maybe it’s ten
Q: So you’re saying….
A: But I knew it wasn’t ten.
Q: You knew it wasn’t ten?
A: Yes.
THE COURT : I want to be sure the witness is finished answering before you start your next question Mr. Pain.
Q: You knew it wasn’t ten?
A: Yes.
Q: No way it could be ten?
A: No way it could be ten.
Q: Because you only had four?
A: I wasn’t sure of the number.
Q: Okay. Certainly less than ten?
A: Yes.
Q: Then why did you say it could be ten?
A: Because of the question you asked me at the time.
Q: But could be ten, you knew that wasn’t the truth?
A: Because you were getting me upset and so I just said – you know to stop you from asking me the same question over and over I just said it could be ten.
Q: I was getting you upset?
a: Yes.
Q: With the questions I was asking?
A: Yeah because it’s the same thing you keep asking over and over.
Q: And because you were upset you said something and you knew it wasn’t the truth, correct?
A: Because of the questions you asked me.
Q: You knew it wasn’t the truth, correct?
A: It wasn’t exactly, I had ten, I said it could be ten. That’s a difference. You said I had ten or it could be ten. It’s a difference there.
Q: What’s the difference?
A: Could be and have is two different things.
Q: But you knew in your mind it wasn’t ten. Is that correct?
A: Yup.
Q: Would you agree with me that saying that you might have ten convictions makes you look worse than if you only had four convictions?
A: To my opinion you were trying to paint a picture that I had lots more than what I said I had. That is why I said it could be ten. You know I just went a high number so that you don’t have to keep going, like if it’s 20 or 30. I keep telling you it’s three or four or five, and said maybe four, maybe ten, maybe seven. You went all the way up to 12. I knew it wasn’t that.
Q: You knew it wasn’t definitely 11?
A: You keep going up in numbers so I just kept a number to give you.
Q: But my question to you Ma’am is you knew it wasn’t 11. Yes or no?
A: Yes I know.
Q: You answered, could be 11? Correct?
A: Well you needed an answer and I gave you one.
Q: But you knew it couldn’t be 11?
A: I knew it couldn’t be 11.
Q: Thank you. I’m going to take you back, ask you to take your mind back to the 8th of July of 2000. It’s a Saturday, and that’s the day you took Jeremy to the hospital. Is that correct?
A: Yes.
Q: Now before you take him to the hospital, Nelson was picked up by his sister Jane. Is that correct?
A: I knew he was supposed to be picked, I did not see him being picked up but he left and went downstairs to be picked up.
Q: Okay, so he’s gone.
A: Yes.
Q: And then at some point you decide you’re going to take Jeremy to the hospital?
A: Yes, when I examined Jeremy. I decided that, you know, I should go and get this checked out.
Q: And I suggest to you that before you went to the hospital you called up Jane on her cell phone and you told her that you thought that Nelson had molested Jeremy and you were taking him to the hospital?
A: Yes I can remember telling her that.
Q: Were you scheduled to work that day?
A: Yes.
Q: And did you call in to work that day? Now you’ve decided you’re going to the hospital with the boy, right?
A: Yes.
Q: But you have to go to work?
A: Yes.
Q: So how did you deal with that?
A: I guess, I was working like – I work through an agency so if I don’t show up they know automatically that I wouldn’t be there.
Q: You don’t have to call in?
A: At that time I don’t think I called in. I can’t remember if I called in or not.
Q: Were they expecting you at work that day?
A: Yeah they did book me for a shift but the way it works, you could always get a replacement if one person doesn’t show up.
Q: And you don’t even have to call in to tell them you’re not coming?
A: At the time I did not. I can’t remember calling in.
Q: And what kind of work was that?
A: It was through the agency, I think it was working at the hospital.
Q: How do they know you’re not going to show up?
A: That’s how it works because if one person doesn’t show up the next person on the list is – they call the next person on the list.
Q: How long would they wait before they called someone else?
A: I wouldn’t be able to answer that.
Q: Isn’t it true that in fact earlier in the day before Nelson had left, you called his sister Jane Casem and pleaded with her to take care of Jeremy?
A: Yes I did.
Q: You knew she was coming to pick up Nelson to take him back to her place?
A: Yeah I did. That’s what normally happens.
Q: And you wanted her to take Jeremy along and watch him?
A: I asked her.
Q: You asked her several times?
A: Probably.
Q: And she refused?
A: Yes she did.
Q: And that upset you?
A: I wouldn’t say that it upset me, I can’t remember if it did or not.
Q: And this is – prior to this day you had caught Nelson in the bedroom with Jeremy?
A: That’s what I said.
Q: And you found something in Jeremy’s mouth?
A: Yes.
Q: And you had serious concerns that he’d been sexually assaulted by Nelson. Correct?
A: Could you repeat that?
Q: A few days before this day we’re talking about now, you’d caught Nelson in the bedroom, in your bedroom with Jeremy?
A: To be exact….
MS. FOSTER: That was not her evidence Your Honour. To be fair that was not her evidence. She didn’t say a few days before, she didn’t remember if it was the day before, two days before, three days before et cetera. It was within a week.
Q: Some time before, not the same day, some time before?
A: Yeah it was not the day before.
Q: Okay and you had serious concerns that Nelson had sexually assaulted Jeremy?
A: I had believed something was going on.
Q: Well you saw something in Jeremy’s mouth?
A: Yes I did and I called his grandmother and I told her.
Q: When did you call his grandmother?
A: Jeremy’s grandmother, I called Jeremy’s grandmother like the same day and she came the next day to pick up Jeremy.
Q: I’m sorry, which day are you talking about Ma’am?
A: It was Friday.
THE COURT : I’m sorry, what happened on Friday?
A: I remember after I left the court, it was Friday this happened and I called my twin sister the next day and she told me she was coming to pick up Jeremy the next day which was Saturday.
Q: I’m sorry, when you say this happened, what are you referring to?
A: What I saw in Jeremy’s mouth.
Q: And you’re saying that was Friday?
A: Yeah.
Q: And you called Jeremy’s mother Friday?
A: Yeah.
Q: She came Saturday to pick him up?
A: Yes.
Q: When did she come Saturday?
A: She came Saturday night. She was on her way to pick him up.
Q: And you called her because you were concerned that something really bad had happened to Jeremy. Correct?
A: Well I told her about the incident, what happened.
Q: Well my question is you called her because you were concerned that something bad had happened to Jeremy?
A: I called her because of what happened.
Q: Were you concerned that something bad had happened to Jeremy?
A: I called her about what I saw happen.
Q: Is that a yes or a no Ma’am?
A: I answered.
THE COURT : Well I think you might think you’ve answered the question but actually the question is being phrased a little differently from what you’re responding to. So can I have the question again, please?
Q: Did you call Jeremy’s mother…
A: Grandmother.
Q: ..grandmother, sorry, because you were concerned that something bad had happened to him?
A: I – could I – do I have to answer that or can I tell him. I called her because of what I saw in his mouth. I called her and told her what happened.
Q: Well were you concerned that something bad had happened?
A: Yes I was concerned about what happened. Yes I was concerned.
Q: And that concern stemmed from your belief that Nelson may have done something to him?
A: Because the way he was when I went into the room, I called her and I told her.
Q: And you were concerned that Nelson had done something to Jeremy?
A: You keep asking me the same question over and over and I keep answering you. What other way you like me to answer you?
Q: Well the way I’m phrasing it Ma’am, it’s a yes or no question. Were you concerned that Nelson had done something bad to Jeremy?
A: I was concerned yes. I was concerned that something happened to Jeremy.
Q: And that Nelson had done it?
A: Well he was the only person there. What I saw in his mouth, that’s what I reported to my sister, what I saw in his mouth, that’s what I reported to her.
Q: What did you tell your sister?
A: Just what happened.
Q: What did you tell her though?
A: What I saw, that where I left Jeremy, where I saw Nelson and everything, I make him go into the bathroom and spit it out and Nelson was standing right there. I told her that.
Q: Would you agree with me that you had concerns that Nelson should not be left alone with Jeremy?
A: Could you say that again?
Q: Did you have concerns that Nelson should not be left alone with Jeremy?
A: I did not have that concerns, no. It didn’t cross – it didn’t come to me about that.
Q: Did you think it was okay to leave Nelson alone with Jeremy after what you’d seen?
A: Yes.
Q: You didn’t have any concerns?
A: I wasn’t worried that he would have, you know.
Q: The following – okay, now going back, Saturday July 8th, that’s the day you’re going to the hospital?
A: Yes.
Q: You called Jane two times. Once you asked her to babysit, then you called her again later, now claiming that you believed Nelson has molested Jeremy?
A: Yes.
Q: And you’re going to the hospital?
A: Yes.
Q: Now the next day, Sunday July 9th…
A: Yes?
Q: …Jane and Nelson come back?
A Yes.
Q: To collect Nelson’s things?
A: Yes.
Q: You’re at the apartment?
A: Yes.
Q: Do you say anything to them?
A: Yes.
Q: What did you say to them?
A: I told him I went to the police – I went to the hospital and the police came and they took a statement, Jeremy give a statement at the police station and the police would like to see Nelson.
Q: You told that….
A: The police wanted to talk to him, yes.
Q: …to Nelson?
A: Yes.
Q: And you told that to Jane as well?
A: Yes.
Q: But you didn’t call the police from your place?
A: No.
Q: While they were there?
A: No.
Q: Why not?
A: I left it up to them to go on their own.
Q: Was your – was any one else in the apartment?
A: Yes.
Q: Who was there?
A: My twin sister was there.
Q: Did she say anything to them?
A: I can’t remember.
MR. PAIN : Those are my questions.
THE COURT : Thank you. Any re-examination?
MS. FOSTER : No Sir.

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