A man has been found guilty of aggravated assault for cutting another man's finger, following a trial involving a knife attack at a Surrey apartment.
Justice David Layton in B.C. Supreme Court New Westminster found Jaal Routh Kueth guilty as charged for cutting Mark Datinguinoo, 38, on Feb. 26, 2023 at the victim's apartment.
Datinguinoo was the Crown's key witness at trial and testified Kueth attacked him.
Kueth did not call any evidence in his defence.
Layton in his March 12 reasons for judgment noted the Criminal Code states that "Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant" and that a "wound" within the meaning of the Code is "a break in the continuity of the whole skin that constitutes serious bodily harm, which in turn is any hurt or injury that interferes in a substantial way with the complainant's integrity, health or well-being."
During the trial Datinguinoo didn't have a job and was living in a shelter but at the time of the offence was living with four other people in a one-bedroom apartment on the seventh floor of a tower roughly a 10-minute walk from the Surrey Central SkyTrain Station.
He testified that on Feb. 6, 2023, he woke up at about 5:30 a.m. asked walked to the SkyTrain station to bum a cigarette. "I accept that Mr. Datinguinoo had insufficient money to buy a pack of cigarettes. He had at most a few coins that he hoped to exchange for a cigarette if he found a smoker willing to make the trade," Layton said.
He ran into Kueth in the building's lobby, whom he recognized from the North Surrey Pretrial Centre, and asked him if he had a smoke. "Mr. Kueth did not have a smoke, so Mr. Datinguinoo says he walked by himself to the Skytrain station, where he asked numerous commuters for a cigarette, but without any success," the judge noted.
Datinguinoo testified Kueth approached him from a couple of steps away and had numerous “scratch and win” lottery tickets. They talked a bit then went back to the apartment, where they scratched the tickets and won $40. "Datinguinoo suggested they buy smokes, so the two men walked to a convenience store located under the SkyTrain station. They scratched more of Mr. Kueth’s tickets at a BC Lotto table in the store, and bought pop and cigarettes, before returning to Mr. Datinguinoo’s apartment," Layton noted.
Back at the apartment, Datinguinoo asked if Kueth if he had drugs. "Kueth had a bowl pipe and a little bit of methamphetamine. Mr. Datinguinoo sat on the corner of his bed and had two or three tokes from the pipe. This was not Mr. Datinguinoo’s first experience using methamphetamine, and he freely admitted to having had a substance abuse problem at that time."
Datinguinoo testified that after smoking the meth they didn't speak for about half an hour. During this time, he said, he was intoxicated and sat on his bed looking at his cell phone while Kueth also seemed high and was going back-and-forth around the kitchen.
"Mr. Datinguinoo testified that he then felt a knife 'going through my neck,' but 'softly.' It was not a strong strike but rather 'touched' his neck, and he was lucky," Layton recalled. "He leaned back on his bed through 'basic instinct,' and kicked Mr. Kueth while lying down, as his instinct was to get out of 'that violence.'"
A police photograph of Datinguinoo’s neck showed what appeared to be "two or three reddish, linear scrapes, as opposed to cuts, each about a centimetre in length. He testified that these marks were the result of the knife touching his neck during the incident."
Datinguinoo testified the knife came from the kitchen. He kicked Kueth out of the apartment and called 911.
One police photograph shows two injuries on his index finger, with the first being "a fairly deep cut, perhaps a couple of centimetres long, running almost horizontally just below the knuckle, and spread open several millimetres in the middle.
"The second injury is more of a curved cut, of approximately the same length if not slightly longer, but likely shallower, on the side of the same finger but facing the thumb and closer to the webbing," Layton noted.
He found Datinguinoo's testimony to be "credible and reliable" that Kueth attacked him with a knife on Feb. 6, 2023 and concluded that the Crown proved beyond a reasonable doubt Kueth "intentionally stabbed Mr. Datinguinoo without the latter’s consent."
The judge found the deeper of the two cuts to Datinguinoo’s index finger is a “wound” within the meaning of the Criminal Code, because it is a break in the continuity of the whole skin that interfered in a substantial way with his integrity, health or well-being, and thus constitutes serious bodily harm.
"In addition, I find on the criminal standard that a reasonable person in Mr. Kueth’s place would have realized that lunging at another person with a knife in the manner described by Mr. Datinguinoo would put that other person at risk of suffering some kind of bodily harm. Accordingly, I conclude that the Crown has met its onus of proving that Mr. Kueth committed aggravated assault on Mr. Datinguinoo."
