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Her Majesty the Queen v. Appleton

[Indexed as: R. v. Appleton]

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55 O.R. (3d) 321

[2001] O.J. No. 3338

Docket No. C21055

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Court of Appeal for Ontario

Laskin, Charron and Simmons JJ.A.

August 21, 2001

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Criminal law -- Appeals -- Fresh evidence on appeal -- Ineffective assistance of trial counsel -- Accused convicted of first-degree murder involving use of homemade gun -- Part of circumstantial evidence against accused was his foreknowledge about nature of murder weapon before police disclosed that fact -- Accused testifying that he learned nature of gun used from counsel at trial -- Defence counsel not testifying -- On appeal accused seeking to adduce affidavit from defence counsel that he told accused gun was homemade -- Accused alleging counsel's failure to testify amounting to ineffective assistance of counsel resulting in miscarriage of justice -- Due diligence component of test for admission of fresh evidence if evidence not adduced at trial because of incompetence of counsel -- Undesirable for appellate court to determine competence of counsel unless shown that miscarriage of justice resulted from alleged incompetence -- Fresh evidence not admitted -- Failure of defence counsel at trial to testify did not prejudice accused and no miscarriage of justice resulting given overwhelming nature of case against accused excluding issue of his foreknowledge regarding nature of weapon -- Appeal dismissed.

Charter of Rights and Freedoms -- Right to counsel -- Right to effective assistance of counsel -- Fresh evidence on appeal -- Accused convicted of murder committed with homemade gun -- Circumstantial evidence against accused including his statement about nature of gun before police disclosed information -- Accused testified that he was told about gun by defence counsel before accused made his comment -- Defence counsel not testifying at trial -- On appeal accused seeking to adduce affidavit from defence counsel confirming accused's evidence regarding gun -- Accused alleging counsel's failure to testify amounting to ineffective assistance of counsel -- Evidence on appeal showing that defence counsel made considered decision not to testify due to concern that such evidence would amount to at least partial waiver of privilege -- Accused providing written instructions during trial that defence counsel should not testify -- Undesirable for appellate court to engage in assessment of counsel's competence unless shown resulting prejudice causing miscarriage of justice -- Fresh evidence not admitted -- Circumstantial evidence overwhelming excluding accused's knowledge regarding homemade gun and no miscarriage of justice resulting from defence counsel's decision not to testify -- Appeal dismissed.

The accused was convicted of the first-degree murder of his mother-in-law. It was the theory of the Crown at trial that the accused, who was experiencing financial difficulties, sought to kill both his mother-in-law and his father-in-law so that he and his wife could inherit a significant amount of money. The Crown also argued that the accused beat his mother-in-law and shot her with a homemade gun, and that his plan to wait for his father-in-law to come home and kill him as well was frustrated by the arrival of a newspaper carrier. The Crown's case against the accused was largely circumstantial. In addition to approximately 20 other items of circumstantial evidence, the Crown relied upon the accused's apparent knowledge that the murder weapon was a homemade gun at a time prior to the disclosure of this fact by the police. The accused testified that one of his lawyers, B, had informed him of the police suspicion before the accused made his comment about the gun. B did not testify at trial to confirm that explanation. The accused appealed his conviction. His main contention on appeal was that his trial counsel's failure to call available evidence that would have supported his explanation about the source of his knowledge that the murder weapon was a homemade gun resulted in a miscarriage of justice. He sought to introduce fresh evidence in the form of the affidavits of both trial counsel for the defence, including a statement by B that he had informed the accused of the police suspicion that the murder weapon was a homemade gun.

Held, the appeal should be dismissed.

The test for the admission of fresh evidence is: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible; and (4) it must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. Where the proposed fresh evidence was in existence at the time of the trial, the accused, in order to meet the due diligence criterion, must explain why the evidence was not called at trial. The explanation may, in some cases, give rise to an allegation of ineffective assistance of counsel. An ineffectiveness claim contains a performance component and a prejudice component. For such a claim to succeed, it must be established that counsel's acts or omissions constituted incompetence and that a miscarriage of justice resulted. If the accused satis fies the court that trial counsel was incompetent, the due diligence criterion for the admission of fresh evidence on appeal will have been met. The accused must then satisfy the court that counsel's incompetence in failing to introduce the evidence has resulted in a miscarriage of justice. That inquiry leads to a consideration of the remaining three criteria for the admission of fresh evidence. In cases where there has been no miscarriage of justice, it will usually be undesirable for the appellate court to decide the issue of competence of trial counsel.

In this case, the proposed fresh evidence was available at trial and could have been called, and the prospect of calling the evidence was specifically considered by the defence team. Ultimately, the accused provided instructions that B was not to testify based on counsel's considered opinion that such testimony would constitute a waiver of solicitor-client privilege with respect to the accused's discussion with B on that day, and that this waiver would damage the defence. It was not clear that counsel's decision not to call B was unreasonable, but in any event, it was neither necessary nor advisable for the court to assess the reasonableness of the decision, as this was one of those cases where it was apparent that no miscarriage of justice was occasioned by counsel's decision. B's evidence was relevant for corroboration purposes, but it was not the only corroborating evidence at trial. While B's evidence was reasonably capable of belief, his testimony at trial might have injected numerous issues into the trial related to the reliability of B's own recollection. Most importantly, B's testimony, if accepted, could only have served to weaken one single item of circumstantial evidence in what was an overwhelming case for the Crown. The failure to call B could not reasonably have affected the verdict.

The Crown's theory on motive was reasonably supported by the evidence and, consequently, was properly left with the jury to consider.

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R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, 81 Alta. L.R. (3d) 1, 2000 SCC 22, 184 D.L.R. (4th) 577, 253 N.R. 201, [2000] 8 W.W.R. 193, 143 C.C.C. (3d) 289, 2000 SCC 22, 32 C.R. (5th) 207; R. v. Palmer (1979), 1979 CanLII 8 (SCC), 1 S.C.R. 759, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22 (sub nom. Palmer and Palmer v. R.), apld

R. v. Khan (1998), 1998 CanLII 27756 (MB CA), 129 Man. R. (2d) 32, 180 W.A.C. 32, 126 C.C.C. (3d) 353, 1998 CanLII 27756 (MB CA), 17 C.R. (5th) 221 (C.A.) [Leave to appeal to S.C.C. refused (1999), 236 N.R. 186n, 138 Man. R. (2d) 124, 202 W.A.C. 124n]; R. v. Nugent (1995), 1995 CanLII 8927 (ON CA), 24 O.R. (3d) 295, 100 C.C.C. (3d) 89 (C.A.); Wildman v. R., 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, 5 O.A.C. 241, 1984 CanLII 82 (SCC), 12 D.L.R. (4th) 641, 55 N.R. 27, 14 C.C.C. (3d) 321 (sub nom. R. v. Wildman), distd

Other cases referred to

R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.); R. v. McMartin, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, [1965] 1 C.C.C. 142, 43 C.R. 403, 1964 CanLII 43 (SCC), 47 W.W.R. 603, 46 D.L.R. (2d) 372; R. v. Wang, [2001] O.J. No. 1491 (C.A.); Strickland v. Washington, 466 U.S. 668 (1984)

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APPEAL from a conviction for first-degree murder.

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Russell Silverstein, for appellant.

Eric H. Siebenmorgen, for respondent.

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The judgment of the court was delivered by

[1] CHARRON J.A.: -- The appellant appeals from his conviction for the first-degree murder of Ilona Petzoldt on December 7, 1994, for which he was sentenced to life imprisonment with no parole eligibility for 25 years.

[2] The deceased was the appellant's mother-in-law. She was found dead in her home by her husband shortly after 6:00 p.m. on November 11, 1992. She had been brutally beaten some 65 times in the head and shot five times, also in the head. The issue at trial was the identity of the perpetrator.

[3] It was the Crown's theory at trial that the appellant, who was experiencing financial difficulties, sought to kill both his mother-in-law and father-in-law so that he and his wife could inherit a significant sum of money. It was the Crown's position at trial that the appellant arrived at the home of his parents-in-law around 5:00 p.m. and, knowing that his mother-in-law would be alone at the time and that his father-in-law would arrive around 6:00 p.m, he beat his mother-in-law about the head in the hallway outside the bathroom, and then dragged her into the bathroom so that her husband would not immediately see the body upon entering the residence. It was the Crown's further theory that it had been the appellant's intention to ambush his father-in-law in this fashion and kill him as well, but that his plan was frustrated by the arrival of the newspaper carrier, Mr. Kurtz. Upon hearing the sound of the mailbox and subsequently seeing Mr. Kurtz walking up the driveway, the appellant hurriedly decided to flee. He rapidly cleaned himself up but was not successful in removing all of the diluted blood from his clothing.

[4] The Crown's case against the appellant was largely circumstantial. In support of its theory, the Crown relied on a large body of evidence that included: evidence of bloodstains and tissue fragments found at the scene, on the appellant's clothing, on his tool box and in his car; evidence of a nose pad from the appellant's glasses found under the deceased's body, coupled with the discoloration on the appellant's face consistent with him having been struck in the glasses; the appellant's admitted presence at the scene; his flight; the phone call to his wife, immediately after leaving the scene; lying about his attendance at the deceased's house; his heavy alcohol consumption shortly after leaving the scene; the disposal of his clothes; his lies to the police and his fabrication of evidence to cover up his lies; the observations of the newspaper carrier and his wife, Mr. and Mrs. Kurtz; evidence that the deceased was shot with a homemade gun and the appellant's ability to make a firearm including evidence of hand-drawn diagrams found at his home and workplace; the appellant's apparent knowledge that the murder weapon was a homemade gun at a time prior to the disclosure of this fact by the police; the appellant's financial circumstances and his motive to kill his parents-in-law; and the unlikelihood of attack by an intruder or stranger.

[5] The defence position at trial was that the appellant arrived at his mother-in-law's home at 5:30 p.m. and discovered her dead body lying in a pool of blood. He took her pulse and then fled in panic without calling 911 or waiting for his father-in-law to arrive home. The defence called psychiatric evidence to explain that, as a result of psychological traumas suffered in childhood, the appellant was ill-equipped to deal with the discovery of his mother-in-law's body. The appellant admitted to having lied to the police in his various interviews with them and explained his conduct over the days prior to his arrest as attempts on his part to support the false statements made to the police over the course of the investigation. The appellant denied any motive to kill his mother-in-law and offered explanations for the crude firing device diagrams found at his former place of work and at his home.

[6] The appellant's main contention on this appeal is that his trial counsel's failure to call available evidence that would have supported his explanation at trial about the source of his knowledge that the murder weapon was a handmade gun resulted in a miscarriage of justice. The appellant further contends that the Crown's theory that he also intended to kill his father-in-law was entirely speculative, unsupported by the evidence, and improperly used by the Crown to explain the weakness in the Crown's theory that the appellant killed the deceased for a financial motive when he could not have benefited from her death alone. Finally, the appellant alleges that the trial judge's instructions to the jury were inadequate with respect to eyewitness identification, motive, opportunity and post-offence conduct.

[7] We did not call upon Crown counsel to respond to any of the grounds of appeal related to the trial judge's charge to the jury. In our view, the trial judge's instructions to the jury on the issues identified by counsel contained no error and were entirely adequate in the circumstances of this case.

[8] I will now deal with the remaining two grounds of appeal.

[9] In my view, it is unnecessary to inquire into the reasonableness of trial counsel's decision not to call the fresh evidence now sought to be introduced by the appellant because the failure to call this evidence did not occasion any miscarriage of justice. Hence, the proposed evidence does not meet the criteria for the admission of fresh evidence.

[10] It is further my view that the Crown's theory on motive was reasonably supported by the evidence and, consequently, was properly left with the jury to consider. It is particularly noteworthy that no objection was made at trial to the Crown's approach on this issue.

A. The Application to Introduce Fresh Evidence

1. The proposed fresh evidence

[11] At trial, Crown counsel elicited through the appellant in cross-examination that he, on November 25, 1992, in an interview with a psychiatrist retained by the defence, told that psychiatrist that the police "seem to think I made a gun. I'm probably capable of making one." There was ample other evidence that the appellant was capable of making a firearm. However, the appellant's knowledge of the police suspicion about the nature of the murder weapon became significant because the investigating officer had testified for the Crown that at no time prior to December 17, 1992 had he or anyone under his direction disclosed to the appellant, any member of the appellant's family or any member of the defence team, that the police believed that the murder weapon was a homemade gun. Indeed, the investigating officer testified that he himself had not harboured this suspicion before November 26, 1992. The appellant testified that his counsel, Michael Block, had informed him of the police suspicion prior to his meeting with the psychiatrist. Michael Block, who was co-counsel with William Gorewich for the defence, did not testify at trial to confirm the appellant's explanation for the source of his knowledge about the police suspicion. Crown counsel, in his closing address to the jury, argued that the only explanation for the fact that on November 25, 1992, the appellant had knowledge of the type of weapon used in the murder, was that he was the killer. The appellant's statement to his psychiatrist was one of more than 20 items of circumstantial evidence relied upon by Crown counsel in his closing address to the jury.

[12] The proposed fresh evidence consists of the affidavits of both trial counsel for the defence. In particular, it consists of the statement of Mr. Block that, upon hearing the appellant's testimony at trial, he remembered that he had informed the appellant of the police suspicion on November 17, 1992 before the appellant's interview with the psychiatrist. To support this, Mr. Block relies upon contemporaneous notes of his November 17 conversation with the appellant, which contain three point-form lines relating to the topic of a gun. The fresh evidence is intended to corroborate the appellant's testimony as to the source of his knowledge about the murder weapon.

2. The test for admitting fresh evidence when the application is based on an allegation of ineffective assistance of trial counsel

[13] The test for admission of fresh evidence is well-established. It is that set out in R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, 50 C.C.C. (2d) 193 at p. 205:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . ;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief, and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[14] These criteria for admitting fresh evidence were reiterated recently in R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, 2000 SCC 22, 143 C.C.C. (3d) 289. In B. (G.D.), the Supreme Court of Canada stressed the importance of the due diligence criterion stating, at para. 19 [p. 529 S.C.R.], that it "exists to ensure finality and order -- values essential to the integrity of the criminal process". The court quoted the following words of Doherty J.A., in R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 at p. 411 (Ont. C.A.):

The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of "fresh" evidence on appeal has been stressed . . . .

[15] Hence, as stated in Palmer, the failure to satisfy the due diligence criterion will generally be determinative of the issue. If the evidence, by due diligence, could have been adduced at trial, it generally should not be admitted on appeal.

[16] However, the Supreme Court of Canada also reiterated the principle in B. (G.D.), established by the jurisprudence pre-dating Palmer, that the criterion of due diligence must yield, particularly in criminal cases, where its rigid application might lead to a miscarriage of justice. It is apparent from the words of Ritchie J. in R. v. McMartin, [1964] S.C.R. 484 at p. 491, 1964 CanLII 43 (SCC), 46 D.L.R. (2d) 372, quoted in B. (G.D.) at para. 19 [p. 529 S.C.R.] in support of this principle, that the inquiry into whether there has been a miscarriage of justice involves a consideration of the remaining Palmer criteria -- the relevance of the evidence, its credibility and the reasonable likelihood that it might have affected the verdict at trial:

In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial.

[17] In cases where the fresh evidence was not in existence until after the trial, obviously the due diligence criterion will have been met. The criterion will also have been met in cases where the evidence, although in existence at the time of trial, could not have been discovered by the exercise of due diligence. In all other cases, the applicant, in order to meet the due diligence criterion, must explain why the evidence, although available, was not called at trial.

[18] The explanation may, in some cases, give rise to an allegation of ineffective assistance of counsel. The applicant may allege that the evidence was not discovered because of the lack of due diligence of counsel, or, although discovered, it was not called because counsel, with or without the acquiescence of his client, decided against calling it. In either situation, the competency of counsel may be put in issue by the appellant. When a claim of ineffective assistance of counsel is made, it becomes necessary to consider the test that must be met by the appellant, the approach that should be taken by an appellate court and how these principles intersect with the test in Palmer.

[19] The case of B. (G.D.) is one example where the appellant, on his application to introduce fresh evidence, alleged that the proposed evidence, although available at trial, was not led due to the incompetence of counsel. In dealing with the ineffectiveness claim, the Supreme Court of Canada provided guidance on the general approach that should be adopted by appellate courts when such a claim is made.

[20] The Supreme Court adopted the reasoning in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J., where an ineffectiveness claim was identified as comprising a performance component and a prejudice component. Major J., in writing for the court, stated as follows at para. 26 [pp. 531-32 S.C.R.]:

For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.

[21] Major J. provided guidance on how to determine incompetence and what constitutes a miscarriage of justice at paras. 27-28 [p. 532 S.C.R.]:

Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.

[22] Major J. then provided guidance on the approach that should be adopted where it is apparent that no prejudice has occurred from the alleged incompetent conduct of counsel at para. 29 [p. 532 S.C.R.]:

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697).

[23] In my view, it follows from the principles set out in B. (G.D.) that the due diligence criterion will be met when the proposed fresh evidence was not led at trial due to the incompetence of trial counsel. This court has expressly so stated in R. v. Wang, 2001 CanLII 20933 (ON CA), [2001] O.J. No. 1491 (C.A.) at para. 58. Of course, the incompetent decision of counsel, in and of itself, will not result in a new trial. It is incumbent upon the appellant to also show that the failure to call the evidence resulted in a miscarriage of justice in order to satisfy the "prejudice component" of the test for ineffective assistance of counsel. This additional requirement is also necessary under the remaining three Palmer criteria for the admission of fresh evidence. The inquiry at this stage is essentially the same under either test. Indeed, in B. (G.D.), Major J., after determining that the claim of incompetence had not been made out, concluded that the due diligence criterion had not been met, and proceeded to inquire whether the failure to use the evidence in question occasioned a miscarriage of justice. [See Note 1 at end of document] He did so by considering the remaining Palmer criteria -- reliability, credibility, and the reasonable likelihood that the evidence might have affected the verdict at trial.

[24] In summary, on any application to introduce fresh evidence, the applicant must meet the Palmer criteria. Where the applicant claims that the proposed evidence was not introduced at trial due to the ineffective assistance of his or her counsel, this claim is properly addressed under the first Palmer criterion of due diligence. If the applicant satisfies the court that trial counsel was incompetent (the "performance component" of the test for ineffective assistance), the due diligence criterion will have been met. The applicant must then satisfy the court that counsel's incompetence in failing to introduce the evidence has resulted in a miscarriage of justice. This inquiry leads to a consideration of the remaining three Palmer criteria.

[25] Where the applicant does not satisfy the court that trial counsel was incompetent and hence does not meet the criterion of due diligence, the court should nonetheless consider the remaining three Palmer criteria, keeping in mind that the due diligence requirement is but one factor to be considered and that it must yield if its rigid application might lead to a miscarriage of justice.

[26] In cases where it is apparent that there has been no miscarriage of justice, it will usually be undesirable for an appellate court to decide the issue of competency of trial counsel. In such cases, if it is appropriate to dispose of the fresh evidence application on the ground that the three remaining Palmer criteria have not been met, without deciding the question of due diligence, then that course should be followed.

3. Application to this case

[27] In this case, the appellant concedes that the proposed evidence was available at trial and could have been called. Indeed, the prospect of calling the evidence was specifically considered by the defence team. Upon hearing the appellant's testimony at trial, Mr. Block advised Mr. Gorewich that he did, in fact, recall informing the appellant of the police suspicion during a conversation on November 17. Defence counsel communicated with Crown counsel during a recess, then sought and obtained the trial judge's permission to have the trial adjourned early so that defence counsel could consider their position. The prospect of Mr. Block testifying was then discussed between the two counsel and their client. Advice was also sought from other experienced defence counsel. Ultimately, the appellant provided instructions that Mr. Block was not to testify based on counsel's considered opinion that such testimony would constitute a waiver of solicitor-client privilege with respect to the appellant's discussion with Mr. Block on that day, and that this waiver would damage the appellant's defence. The defence team also concluded that no application to the trial judge for a ruling on the privilege issue could be made until after Mr. Block had testified in chief.

[28] Counsel's analysis of the first Palmer criterion on due diligence is centred on a claim of ineffective assistance of counsel at trial. Counsel submits that the decision by trial counsel not to call Mr. Block was demonstrative of an erroneous understanding of the law of privilege. He submits that the information conveyed by Mr. Block to his client on November 17, 1992 about the police suspicion was not privileged and hence its disclosure would not have constituted a waiver of the solicitor-client privilege. Alternatively, he argues that any waiver would have been limited to the subject matter of the gun and not to the entire discussion between the solicitor and his client on the day in question as believed by trial counsel. He therefore submits that the evidence was not called due to trial counsel's ineffectiveness and that, consequently, the due diligence criterion was met.

[29] In my view, it is not clear on the basis of the proposed fresh evidence that trial counsel's decision not to call Mr. Block was unreasonable as alleged. The law of privilege is not without uncertainty. Indeed, as conceded by counsel for the appellant in his alternate submission, it is possible, if the court took this approach to the law of privilege, that Mr. Block's testimony about his communication to his client would have opened the door to some cross-examination by the Crown on the issue of the appellant's knowledge of the murder weapon as revealed to his solicitor at the time. This cross-examination may well have included damning evidence for the appellant. The defence team was in the best position to assess the risk involved in calling Mr. Block. In any event, it is my view that it is neither necessary nor advisable for this court to assess the reasonableness of trial counsel's decision. This is one of those cases where it is apparent that no miscarriage of justice was occasioned by counsel's decision. Consequently, I will not address the performance component of the ineffective assistance claim or the criterion of due diligence. The application turns, rather, on a consideration of the remaining Palmer criteria.

[30] On the second criterion, relevance, there is no doubt that Mr. Block's testimony could have provided support for the appellant's explanation of the source of his apparent knowledge of the nature of the murder weapon. His explanation, without this corroboration was certainly weakened, particularly having regard to the serious credibility issues raised by the appellant's testimony generally. For corroboration purposes, then, the proposed fresh evidence would have been relevant. However, it is noteworthy that the trial judge, acceding to the request of defence counsel, outlined in his instructions to the jury other evidence that could lend support to the appellant's testimony on this point. This included the evidence of Mr. Barbetta from the Centre of Forensic Sciences who testified that he conveyed his suspicion about the murder weapon being a handmade gun to the investigating officers at the time of the post-mortem examination on November 13, 1992. This testimony could potentially undermine the evidence of the investigating officer who had testified that he himself had not considered the murder weapon was a homemade gun until November 26, 1992. The trial judge also reminded the jury that the November 14, 1992 search warrant listed a firearm capable of discharging a .22 calibre cartridge as one of the items to be searched for. The trial judge left these items of evidence as possible sources of knowledge for the appellant at the time of his November 25, 1992 interview with the psychiatrist. Hence, the appellant's testimony was not left totally unsupported in the eyes of the jury.

[31] On the third criterion, credibility, there is no doubt that Mr. Block's proposed testimony is reasonably capable of belief and meets the test on that basis. However, a number of issues regarding its reliability would likely have arisen had Mr. Block testified at trial. Mr. Block would have testified that he discussed the issue of a homemade gun with the appellant during an interview with him on November 17, 1992, and that he remembered this conversation for the first time during the course of the appellant's testimony some two years later. The reliability of his recollection based on brief notes that could be subject to interpretation by the jury could well be questioned. Mr. Block would further have testified that he received this information from Mr. Gorewich, who advised Mr. Block that he was told about the police suspicion about the gun by the investigating officer during an informal chat at the courthouse earlier on the morning of November 17. Mr. Block's stated recollection that he had received the information from Mr. Gorewich on November 17 is not confirmed by Mr. Gorewich, and is contradicted by the investigating officer's statement that the police suspicion was not disclosed until December 17. Further, the likelihood of Mr. Gorewich having received information from the police on the morning of November 17, at a time when he himself was not yet retained to represent the appellant, may have been raised as a further issue. In the result, the testimony of Mr. Block may well have injected numerous additional issues into the trial, at a very late stage in the proceedings, related to the reliability of defence counsel's own recollection. Instead of weakening the suggested inference of guilty knowledge, the evidence could have tended to confirm it.

[32] Finally, and most importantly, Mr. Block's testimony, if accepted, could only have served to weaken one single item of circumstantial evidence against the appellant in what can only be called an overwhelming case for the Crown. The appellant's statement to his psychiatrist, although elicited by the Crown in cross-examination, did not even form part of the Crown's case. It was introduced because the defence sought to rely on the testimony of the psychiatrist in support of the appellant's testimony generally. The appellant's weak explanation for his knowledge of the murder weapon was only one of many equally weak explanations for many items of highly incriminating circumstantial evidence against him. Unlike the situation in R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311 at pp. 322-23, 14 C.C.C. (3d) 321 at p. 330, upon which the appellant relies, this item of evidence can not be described as 'the most incriminating evidence adduced' that would tip the scales to make an overwhelming case. The Crown's case, even without the item of evidence, was still overwhelming. The failure to call Mr. Block could not reasonably have affected the verdict.

[33] For these reasons, I would dismiss the application to introduce fresh evidence.

B. The Crown's Theory on Motive

[34] The appellant argues that the Crown should not have been permitted to invite the jury to speculate that the appellant intended to kill the husband of the deceased as well as the deceased. This, he argues, was mere speculation to rationalize the Crown's allegation that the appellant killed the deceased for a financial motive in circumstances where he stood to gain nothing unless both his parents-in-law were dead. In support of his contention, the appellant relies on the following cases: R. v. Khan (1998), 1998 CanLII 27756 (MB CA), 126 C.C.C. (3d) 353, 129 Man. R. (2d) 32 (C.A.); and R. v. Nugent (1995), 1995 CanLII 8927 (ON CA), 24 O.R. (3d) 295, 100 C.C.C. (3d) 89 (C.A.).

[35] In my view, these cases can be distinguished. The Crown's theory on the possible motive for this crime in this case was not entirely speculative as contended. There is no question that the Crown called evidence of possible financial motive and the admissibility of this evidence was not contested at trial. In addition, there was some evidence to support the contention that the killer took some measures to conceal the body of the deceased so that it would not be immediately visible upon entry in the house, which in turn could support the inference that the killer intended to surprise Mr. Petzoldt on his arrival. There was also evidence that the killer may have been surprised by the unexpected appearance of Mr. Kurtz in the driveway, which in turn could support the inference that he departed prematurely.

[36] It is particularly noteworthy that no objection was made at trial with respect to the evidence, the Crown's closing address, or the trial judge's instructions on this aspect of the Crown's theory on motive. Obviously the impropriety that is now being alleged was not perceived by experienced trial counsel as the trial unfolded.

[37] I would not give effect to this ground of appeal.

C. Disposition

[38] For these reasons, I would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: In B. (G.D.), the allegation of incompetence was based not only on trial counsel's failure to use available evidence but also on his failure to obtain express instructions from the appellant about the use of the evidence. The analysis on incompetence therefore included a consideration whether the failure to obtain the appellant's express instructions occasioned any miscarriage of justice. Major J. held on the particular facts of the case that counsel had the implied authority of his client to make this kind of decision and that, in any event, no miscarriage of justice had been occasioned by the failure to seek specific instructions from the appellant.

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