DATE: 20050622

DOCKET: C34341

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ANTON PERERA (Appellant)

BEFORE:

SHARPE, JURIANSZ and ROULEAU JJ.A.

COUNSEL:

Russell Silverstein

for the appellant

Christine Bartlett-Hughes

for the respondent

HEARD:

June 9, 2005

On appeal from a conviction for first-degree murder entered by Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a jury, dated March 16, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of first-degree murder in the death of Yathra Jayaweera, a woman with whom he was living at the time of her death. The deceased was found dead in the apartment she shared with the appellant. She had been strangled. She was lying face down, naked, with severe burns to 30 to 40% of her body. Her ankles were handcuffed together. The appellant admitted that he had caused the deceased’s death.

[2] The theory of the Crown was that the appellant had killed the deceased in a jealous rage after confining and/or sexually assaulting her.

[3] The theory of the defence was that the appellant suffered from paranoid and persecutional delusions amounting to a disease of the mind and that he was incapable of knowing that his actions were morally wrong and therefore not criminally responsible for the death. The appellant also submitted that when he killed the deceased he was incapable of forming the necessary intent to commit murder and that, in any event, he did not kill her in the course of sexual assault or forcible confinement.

1. Did the trial judge err in admitting evidence that four spermatozoa were found on the leg of the deceased?

[4] We agree with the appellant that the fact that the appellant and the deceased had a sexual relationship, and evidence that the four spermatozoa could have been deposited on the deceased’s leg days or weeks prior to her death, reduced the impact of this evidence. However, we do not agree that this rendered the evidence inadmissible. The evidence was plainly relevant to Crown’s theory that the death occurred in the course of a sexual assault. The fact that there might have been an innocent explanation for the presence of the spermatozoa does not mean the trial judge was required to exclude it. The probative value of the evidence was for the jury to assess.

2. Did the trial judge err in admitting evidence of threats by the appellant directed at the deceased's children?

[5] The appellant concedes that evidence that he had threatened the deceased was properly admitted. In our view, evidence of the threats he directed at her children were part and parcel of that same conduct and was properly admitted. The threats against the deceased’s children amounted to threats against her as well. The trial judge considered whether the prejudicial effect of this evidence outweighed its probative value. He concluded that in the context of this case it did not and we see no basis to interfere with his decision. We add here that the trial judge gave the jury a limiting instruction that they were not to infer guilt from evidence of bad character.

3. Did the trial judge in err in admitting evidence of sexual sadism or in failing to give the jury an appropriate direction with respect to its use?

[6] Dr. Klassen, the Crown’s psychiatric expert, called to rebut the defence experts’ opinions regarding the insanity defence, testified that the appellant indicated signs of sexual sadism. We do not agree that the trial judge erred in admitting this evidence. It formed part of Dr. Klassen's diagnosis and the jury was entitled to have that complete diagnosis to assess appellant’s mental condition to enable it to deal with the insanity defence.

[7] The appellant submits that the trial judge should have instructed the jury that the evidence of sexual sadism was relevant only to insanity and that it should not be considered in relation to murder. We disagree. While Dr. Klassen testified that he did not believe that sexual sadism was the primary factor motivating the murder, he also testified that in his opinion, the appellant’s sexual interest in inflicting pain had an impact on how the victim died. The appellant relied on psychiatric evidence in support of his defence that he lacked the requisite intention to commit murder. Again, the jury was entitled to have the complete picture and to consider Dr. Klassen’s entire diagnosis.

[8] We do not agree that by leaving this evidence with the jury, the trial judge in effect invited them to make improper use of propensity evidence. In view of the very peculiar manner in which the deceased had met her death, and the sexual assault element to the first-degree murder charge, the Crown was entitled to lead evidence of sexual sadism and of the appellant’s psychiatric disposition in that regard.

[9] In any event, the trial judge gave the jury the following limiting instruction in his recharge: “[Y]ou do not start with, well, this man is a sexual sadist, therefore, he is more likely than not to have committed this offence; he is a man with a bad character, therefore he is the type who would likely have committed this offence. That is not something you can do. You are just prohibited from doing that.”

4 Did the trial judge err in leaving sexual assault with the jury as a means of finding first-degree murder?

[10] In our view there was sufficient evidence upon which a properly instructed jury could conclude that the killing of the deceased occurred during a sexual assault and the trial judge did not err in leaving that issue with the jury. Evidence the jury could use to find sexual assault included the following:

• the deceased was nude

• spermatozoa were found on the deceased’s leg

• when asked by the police about handcuffs, the appellant related them to pornographic movies depicting handcuffed women having sex with a number of men

• the deceased’s breasts were burned

• psychiatric evidence linking the manner of death and the nature of the injuries to sexual sadism

[11] We do not agree that the trial judge erred in leaving the issue of sexual assault with the jury in light of this evidence.

5. Did the trial judge err in his instruction to the jury relating to post-offence conduct?

[12] The appellant submits that the trial judge erred with respect to what the jury was entitled to infer from the fact that the appellant had left the apartment and had hidden in a motel for two days after causing the deceased’s death before turning himself in to the police:

In order for the ‘after the fact conduct’ of [the appellant] to be relevant on the issue of whether he knew at the material time that his acts were morally wrong, you would have to find that he fled the apartment with the specific purpose of hiding from the police to avoid arrest or detention.

[13] The appellant submits that this passage created the danger that the jury likely inferred from his flight that the appellant knew his acts were morally wrong. We disagree. This admittedly awkwardly worded passage is correct so far as it goes. More important, it does not go so far as to invite the jury to infer from his flight that the appellant knew that his conduct was morally wrong. In that regard, the passage should not be read in isolation. The jury was properly instructed several times that the issue was whether the accused knew that his conduct in killing the deceased was morally wrong. The jury was appropriately cautioned about what it could and could not infer from evidence of flight. The jury was told that there were many possible innocent explanations for flight “which essentially arise out of an appreciation of human nature and how people react to unusual and stressful situations” and that unless those were rejected, the evidence of flight had no relevance to the appellant’s state of mind or capacity to know his acts were wrong. We are satisfied that, read as a whole, the charge did not invite the jury to draw an inappropriate inference from the evidence of flight.

6. Did the trial judge err in failing to instruct the jury that a reasonable doubt could be based upon an absence of evidence?

[14] We agree with the appellant that the trial judge’s instruction on reasonable doubt was deficient in that it stated that a reasonable doubt could arise from the evidence, but failed to go on to state “or from an absence of evidence”. However, failure to state explicitly that a reasonable doubt can be inferred from an absence of evidence is not necessarily fatal where the charge, read as a whole, brings home to the jury the meaning of reasonable doubt: R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (C.A.).

[15] The jury was clearly instructed on the presumption of innocence and the difference between probable guilt and guilt beyond a reasonable doubt. The jury was instructed not to speculate and clearly told that they were to acquit if the Crown’s evidence fell short of proof beyond a reasonable doubt. We are satisfied that when the jury charge is read as a whole in the context of this trial, the jury was properly instructed on reasonable doubt and that the appellant has failed to make out a case for appellate intervention.

7. Do the trial judge’s instructions to the jury reveal a “Miller error”?

[16] In one passage, the trial judge instructed the jury: “It is the facts, as you find them, upon which you base your verdict.” This passage, however, cannot be read in isolation. The trial judge instructed the jury several times that they were to look to the totality of the evidence. We do not accept the submission that when the charge is read as a whole, the jury were, in effect confined to evidence they accepted as true and reliable or that they would have failed to decide the case on all the evidence.

[17] Nor do we agree with the submission that there is a danger that the jury might have been misled into thinking they could not consider evidence of mental disorder not accepted for purposes of the not criminally responsible defence as raising a reasonable doubt on murder. The trial judge specifically instructed the jury that even if the evidence of mental disorder fell short of proving the defence of not criminally responsible, the evidence should still “be taken into account by you together with all of the other circumstances, including consumption of alcohol, in determining if the Crown has proved either specific intent beyond a reasonable doubt.”

8. Did the trial judge err in his instruction to the jury relating to forcible confinement?

[18] The trial judge instructed the jury that even if the handcuffs had been put on the deceased’s ankles after her death there was other evidence from which the jury could find forcible confinement. We do not agree that he erred in this regard. The handcuffs were not the only evidence from which the jury could reasonably find forcible confinement. In addition to the injuries already described, the deceased, who was scheduled to go to work where alcohol had never been noticed on her breath, had a potentially lethal quantity of alcohol in her blood and bruising to her mouth and lips from which the jury could infer that the appellant had forcibly confined her prior to her death.

Conclusion

[19] For these reasons, despite Mr. Silverstein’s capable argument, we dismiss the appeal.

“Robert J. Sharpe J.A.”

“R. G. Juriansz J.A.”

“P.S. Rouleau J.A.”