location: publications / books / Justice Behind the Walls / Sector 3 / Chapter 2 The Disciplinary Process at Matsqui / December 1993: The Nicholas Case -- The Difference a Lawyer Makes

Mr. Nicholas, giving evidence on his own behalf, was asked by Mr. Zipp whether he knew that the device was in his cell. Mr. Nicholas answered that he did not, and that the first time he had seen it was in the courtroom. He was asked whether he had ever used this outfit, and he said he had not. He testified that Mr. Kellough, Mr. Hancock, and a few other prisoners had been in his cell the night before the outfit was discovered. During the period they were in his cell, Mr. Nicholas left on several occasions. When asked by Mr. Walters why the item would be under his mattress, he replied as follows:

Well, I found out later that Mitch [Mr. Kellough] had left it there because security was coming up and he got paranoid because he kept getting searched. A few days prior to this he had been searched, and he thought he was going to be getting searched again, so his first reaction was to take it out and stash it in my house so that he wouldn’t get busted with it, because he didn’t think they’d be searching my house. He left it there. So, lockup came and he never said anything to me about it, because maybe he’d used before and forgot about it.

Mr. Kellough was then called in to give evidence. At first, he had some difficulty focussing on the incident in question. However, he went on to testify that he had just finished fixing before he went over to Mr. Nicholas’ cell. He took the outfit with him because he did not want it found during a search of his cell. He was in Mr. Nicholas’ cell when he saw the guards coming up the back way. He quickly put the outfit under the mattress and then went out into the corridor so that the guards would see him; if they had any suspicion about him, they would search him there and not find the syringe. Mr. Walters asked him why, when he was not searched, he had not gone back to retrieve the syringe. Mr. Kellough said he got side-tracked because he was high. The next day he slept in until noon, and by that time Mr. Nicholas had been arrested. Mr. Walters asked Mr. Kellough to describe the syringe, and his subsequent account was very credible in both its detail and its spontaneity. Mr. Walters asked again why Mr. Kellough did not go back and retrieve the syringe, knowing that he was putting another prisoner in jeopardy. Mr. Kellough replied, "When you’re high you’re not thinking about things like that."

Mr. Zipp submitted that there was a reasonable doubt about Mr. Nicholas’ possession of the syringe. He had given evidence that he did not know it was in his cell, and Mr. Kellough had come forward to state he had placed it there without Mr. Nicholas’ knowledge. Since knowledge was an essential element of possession, Mr. Nicholas should be found not guilty. Mr. Walters ruled that the case turned on credibility:

In regards to Mr. Kellough’s evidence, his evidence basically leaves me with reasonable doubt. I thought his evidence was very weak at first and still, at the end of the day, I don’t know that I believe his evidence. But his evidence is such that I could not say that he was lying or that it’s not true. Without having any opportunity to view the syringe in question here, he was able to describe it very carefully and exactly. He described the orange cap, the plunger, how it was made, and it could well have been his. It could have been in Mr. Nicholas’ possession, too, but I don’t know. It leaves me with doubt and I find you not guilty. Mr. Nicholas, you’re getting in a position where people are going to say lightning may strike once, it may strike twice, but it’s pretty rare that it strikes three times. You’ve had a good day.

At the conclusion of the hearing, Mr. Gerl raised some concerns. He could not understand why Mr. Walters had, in dismissing the second charge, dealt with the question of whether there were reasonable grounds for making the demand, since this was not raised by Mr. Zipp. Mr. Walters responded that, in his role as Independent Chairperson, he should deal with any defence made out on the evidence, and he was not limited to those raised by counsel. He felt this was the only way to proceed, since in most cases counsel was not present, and the role of Independent Chairperson should not be significantly different in the two situations.

From their comments, it was clear the staff officers felt Mr. Nicholas had been found not guilty because of the presence of Mr. Zipp. In my judgement, he would likely have been found not guilty by Mr. Walters even if unrepresented, given the nature of the institution’s evidence. Mr. Zipp’s presence did ensure that the Independent Chairperson was directed to the relevant issues, however, and he identified weaknesses in the institution’s case in his cross-examination. Furthermore, Mr. Zipp ensured that the prisoners’ evidence was presented in a focussed way and he incorporated that evidence into his final submissions.

Page 2 of 2