COURT OF APPEAL FOR ONTARIO
Rosenberg, Sharpe and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Robert Linklater
Appellant
Carol Cahill for the appellant
Leslie Paine for the respondent
Heard: February 17 & 18, 2009
On appeal from conviction by Justice Tamarin Dunnet of the Superior Court of Justice dated June 2, 2006.
1The appellant appeals his conviction for first degree murder. While the central issue at trial was identity, in our view, the evidence that the appellant killed the deceased was overwhelming. Accordingly, we will principally deal with those grounds of appeal concerning the appellant’s liability for first degree murder and the mental state for second degree murder.
Unlawful confinement
2The appellant submits that the trial judge erred in leaving liability for first degree murder on the basis of unlawful confinement. In our view, there was a sufficient basis for a finding of unlawful confinement. There was evidence of a dispute between the deceased and the appellant in the Stevens apartment involving unwanted sexual advances and a physical assault. From this evidence the jury could conclude that the deceased would not have willingly accompanied the appellant. This together with the trail of blood from the apartment to the stairwell, where the deceased was killed, would support a finding that the deceased was forced to accompany the appellant to the stairwell where she was savagely attacked.
Failure to relate the facts to the law
3This ground of appeal primarily turns on attempted sexual assault as an alternative basis for first degree murder. The appellant submits that the trial judge failed to identify for the jury the key factual findings that had to be made in order to ground liability on the basis of attempted sexual assault. In particular, the appellant submits that realistically the jury could only find that the appellant killed the deceased in the course of an attempted sexual assault if they found that the appellant had earlier sexually touched the deceased in the apartment. The appellant submits that given the violence of the attack in the stairwell, the fact that the deceased’s pants’ button and zipper were undone was ambiguous and would only support a finding of attempted sexual assault in the context of the earlier alleged touching.
4In our view, the charge to the jury sufficiently related the facts to the legal issues. Given the position taken by Crown counsel in his jury address and the manner in which the charge to the jury was structured, it would have been obvious to the jury that proof of the sexual touching in the apartment was a crucial part of the Crown’s case.
Drunkenness
5At the judicial pre-trial, counsel who then represented the appellant made it clear that the defence of drunkenness would not be advanced. Consistent with this position, defence counsel asked few questions about the appellant’s apparent state of sobriety during the trial. Similarly, Crown counsel did not lead any evidence from people who interacted with the appellant throughout the day and might have shed light on the appellant’s state of sobriety. The only evidence of drunkenness came from the other occupants of the apartment who described a day of drinking and going to the beer store for more beer and in the appellant’s statement in which he said he drank twelve beers and his memory of events was blurry.
6The trial judge directed the jury that in deciding whether the appellant had the requisite mental state for murder, they should consider the evidence of his alcohol consumption and she specifically directed the jury to the appellant’s statement to the police. She instructed the jury that if they had a reasonable doubt that the appellant had the requisite intent, he could only be convicted of manslaughter.
7Counsel for the appellant now submits that the trial judge did not sufficiently direct the jury with respect to the defence of drunkenness. Given the positions taken by the parties at the judicial pre-trial and indeed throughout the trial, the trial judge’s directions were correct.
Adequacy of the Vetrovec warning
8Three witnesses, Stevens, Whitefish and Thiele played a central role in proof of the sexual assault underpinning liability for first degree murder. All three were drinking heavily during the relevant time and their memories were suspect. They made inconsistent statements prior to trial and during the trial and Stevens in particular was inconsistent throughout his testimony. It was also apparent that some of the witnesses were having difficulty distinguishing between what they observed and what they were told by others. In the circumstances, the trial judge quite properly gave the jury a Vetrovec warning in relation to these three witnesses. That warning was focused on the problem arising from the witnesses’ numerous inconsistent statements.
9The appellant submits that the Vetrovec warning was inadequate in two respects. First, the trial judge erred in failing to alert the jury to the reasons for the need for caution beyond that fact that they had made prior inconsistent statements. Second, the trial judge erred in directing jury that the evidence of one Vetrovec witness was capable of confirming the evidence of another of these suspect witnesses.
10The appellant’s first submission centres on the theory that the real problem with the Vetrovec witnesses was that they had only “recovered” memories and this problem should have been placed clearly before the jury. Recovered memories was never mentioned at the trial and, in our view, it was not necessary for the trial judge to frame the issues in those terms. The frailties in the testimony of the three suspect witnesses were apparent on the record. It was obvious that these witnesses had difficulty with their recollections, that their recollections may have been affected by what they heard from others and that it was only with the assistance of various aids, such as the video surveillance recordings, that they could provide some of their evidence. All of these problems were manifest in their many inconsistent versions of the events and it was this aspect of their testimony that the trial judge expressly included in her Vetrovec warning. In the balance of the extensive review of the evidence, the trial judge identified the various factors that explained the inconsistencies. Identifying the problem as one of recovered memory would not have assisted the jury in deciding what parts of the evidence of these witnesses they could safely rely upon.
11We also do not accept that the trial judge erred in instructing the jury that the evidence of one suspect witness could confirm the evidence of another witness. This court has held to the contrary in R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 131 C.C.C. (3d) 380 at para. 115. Also see R. v. Khela, 2009 SCC 4 at para. 39.
12While the three witnesses shared some of the same characteristics that made their evidence suspect, such as prior inconsistent statements, in our view it was open to the jury to look to confirmation of one Vetrovec witness in the evidence of another Vetrovec witness. This is not a case where the witnesses had colluded; in fact, counsel conceded they were probably not capable of colluding.
Re-examination and use of prior consistent statements
13The appellant submits that the trial judge erred in permitting Crown counsel to re-examine Stevens and Whitefish. These two witnesses were extensively cross-examined on their prior statements. In the case of Stevens, the focus of the cross-examination was on his preliminary inquiry testimony. Based on the preliminary inquiry testimony, it was the theory of the defence that Stevens had not actually witnessed the appellant touching the complainant. It was open to the trial judge to permit Crown counsel to re-examine the witness to demonstrate that he had testified at the preliminary inquiry that he had witnessed the touching. Further, given the multiple versions of events that Stevens had given, it was then open to Crown counsel to attempt to have the witness clarify which version was the correct one. Once Stevens adopted in re-examination his preliminary inquiry testimony it was available for the truth of its contents. The rule concerning the limited use of prior consistent statements had no application.
14With respect to Whitefish, the attack on his evidence centred on his statement to the police. It was open to the trial judge to permit Crown counsel to re-examine Whitefish on other parts of his statement to the police. Otherwise, the jury would have been left with a misleading impression as to what the witness had told the police.
Post-offence conduct
15The trial judge left to the jury three pieces of evidence concerning the appellant’s conduct after the offence. The appellant submits that the trial judge erred in failing to instruct the jury that this evidence could only assist to prove that the appellant was the killer and not the level of culpability. In particular, it is argued that the evidence could not be used to show whether the killing was committed in the course of sexual assault. In our view, it would have been apparent to the jury that the evidence had the limited use. This was the position clearly taken by Crown counsel as reviewed in the charge to the jury. The comments of Major J. in R. v. Jacquard (1997), 1997 CanLII 374 (SCC), 113 C.C.C. (3d) 1 (S.C.C.) at paras. 55-61 are directly applicable to this case. Finally, we are satisfied that the trial judge’s instructions concerning alternative innocent explanations were sufficient.
Failure to grant a mistrial
16In the course of his testimony, Whitefish blurted out that the appellant “went to prison for something he did to a girl named Tracy Carpenter”. Defence counsel sought a mistrial. The trial judge in careful reasons refused the mistrial. The witness had been speaking in a very low voice and the trial judge was satisfied that it was doubtful the jury was able to fully make out the comment. Whether or not to grant a mistrial in those circumstances is pre-eminently a matter for the trial judge and her decision on such an issue is entitled to considerable deference. We have not been persuaded that the trial judge’s decision was unreasonable. We agree with the trial judge that in the circumstances no limiting instruction was required; to the contrary such an instruction would merely have drawn attention to the comment.
Limiting instruction on evidence of discreditable conduct
17The appellant submits that the trial judge should have provided a limiting instruction to the jury as to the use to be made of admissions the appellant made about being involved in fights on the street. We do not agree. Any such instruction would have undermined the defence position that the appellant had a propensity to be involved in such scuffles, which explained the scratches on his face.
Demeanour evidence and the DNA evidence
18A police officer testified that when he entered the room and announced he was from the homicide squad, the appellant unlike the others in the room did not turn around. It was the theory of the Crown that the appellant did not turn around because he was attempting to hide the scratches to his face. This was a permissible inference on the record.
19The appellant also submits that the trial judge erred in directing the jury that there was no evidence of contamination of the various samples taken during the autopsy. In our view, the trial judge’s direction is supported by the evidence.
20In any event, these two grounds of appeal relate solely to the identity of the killer and as we have said the circumstantial evidence on that issue was overwhelming. Were it necessary, we would apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.
Disposition
21Accordingly, the appeal from conviction for first degree murder is dismissed.
Signed: “M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”
RELEASED: “MR” February 25, 2009
