Her Majesty the Queen v. Katwaru [Indexed as: R. v. Katwaru]
52 O.R. (3d) 321
[2001] O.J. No. 209
Docket No. C31912
Court of Appeal for Ontario
Moldaver, Goudge and Simmons JJ.A.
January 25, 2001
Criminal law--Trial--Charge to jury--Second-degree murder of accused's infant son--Child killed by injuries resulting from violent shaking--Accused's wife having opportunity and depressed prior to baby's death--Wife key witness against accused--Wife admitted initially lying to authorities--Wife's evidence containing contradictions and lapses of memory--Trial judge erred by instructing jury to draw inferences only if inferences arose "easily" from evidence--Trial judge erred by instructing jury of significance that wife not asked directly if she caused baby's death--Trial judge's instructions having overall effect of deflecting jury from key issue in defence of whether Crown proved beyond reasonable doubt that accused caused infant's death--Social and healthcare workers testifying as to wife's allegations that accused had previously abused baby--Trial judge erred by failing to instruct jury that repetition of wife's allegations inadmissible for truth--Issue whether wife's all egations true not whether workers accurately repeated them--Appeal allowed--New trial ordered.
The accused was charged with the second-degree murder of his infant son. The accused's wife initially told the police that she was unable to account for the child's condition. She later changed her story, claiming that the accused had mistreated the child from the child's birth and that, on the day the child was taken to hospital, the accused shook and struck him. The case for the Crown rested primarily on the testimony of the accused's wife, which contained numerous contradictions and important lapses of memory. The accused was convicted of manslaughter. He appealed.
Held, the appeal should be allowed.
The trial judge erred in instructing the jury that there was no evidence to support an inference that the accused's wife inflicted the fatal injuries. The accused's wife had the opportunity to inflict the injuries, and by her own admission she was lonely, isolated and depressed in the months preceding the child's death. She initially lied to the police about the events leading up to the child's death. The impugned instruction had the potential of deflecting the jury's attention from the critical issue, which was not whether the evidence proved that the accused's wife killed the child, but whether the jury could be satisfied beyond a reasonable doubt that the accused had caused the infant's death.
The trial judge erred in placing significance on the fact that the accused's wife was not specifically asked whether she inflicted the fatal injuries. In doing so, he may have encouraged the jury to draw the inference that the question was not asked because the accused knew that he, not his wife, inflicted the fatal injuries. This had the potential of severely prejudicing the accused.
In the course of his instructions on the law relating to circumstantial evidence, the trial judge told the jury on numerous occasions that they could infer a fact from established facts but only if the inference flowed "easily and logically" from the other established facts. The word "easily" should not have been inserted into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn.
Social and healthcare workers testified that, after the child was born, the accused's wife reported to them that the accused was physically mistreating the child and that she was afraid of him. The evidence of the workers was clearly not admissible as original evidence. At most, it was admissible to show consistency on the wife's part and to rebut the defence suggestion that her evidence of prior misconduct was the product of recent fabrication. The trial judge did not instruct the jury along those lines. Instead, he led the jury to believe that the evidence of the workers could be used as original evidence, if they accepted it. This constituted serious error and may well have prejudiced the accused.
After reviewing the more troubling aspects of the evidence of the accused's wife, the trial judge stated, ". . . you may well want to remember the old saying about not being able to see the forest for the trees. In this case the forest is the apparently undisputed fact that the baby was killed by a violent shaking . . . The trees are all the little bits of evidence about the details contained in the various statements and the testimony of [the accused's wife]. It is important to consider all of those details and the evidence and the submissions of counsel in relation to them. But remember not to get so involved in the detailed examination of the trees that you lose sight of the forest." The metaphor used by the trial judge was inappropriate because it tended to minimize the weaknesses in the wife's evidence at the accused's expense. If the metaphor had any place in the charge, which was doubtful, it should have been put on the basis that the "forest" was "who inflicted the injuries", not the uncontroverted fact that the child's death was the product of a homicide.
This was not an appropriate case for the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.
APPEAL from a conviction for manslaughter.
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)
David E. Harris, for appellant. Tina Yuen, for respondent. The judgment of the court was delivered by
[1] MOLDAVER J.A.:--The appellant was tried by the Honourable Mr. Justice Keenan and a jury on a charge of second[-degree] murder relating to the death of his infant son. On September 25, 1998, he was found guilty of manslaughter and on October 21, 1998, he received a sentence of 10 years' imprisonment along with a prohibition order under s. 100 of the Criminal Code, R.S.C. 1985, c. C-46 for a period of 10 years.
[2] The appellant appeals from conviction and seeks a new trial on the basis of six alleged errors in the charge to the jury. In the alternative, he asks that his sentence be reduced.
[3] For reasons that follow, I am of the view that the conviction cannot stand and a new trial must be ordered. Accordingly, I do not intend to comment on the length of the sentence.
[4] Because there must be a new trial, I am reluctant to engage in an extensive review of the evidence. Nevertheless, in order to appreciate the grounds of appeal, some detail is required.
The Facts
[5] The appellant and his wife Devi married in 1995. In August of that year, Devi, then in her late teens, gave birth to a son named Darshand. According to Devi, the child was 25 weeks premature and he remained in the hospital until early November 1995.
[6] Throughout the month of November, Devi was visited on numerous occasions by Sandra Dobis, a home care nurse, and two representatives from the Children's Aid Society, Queenie Broaderip, a high-risk infant nurse, and Dan Freedman, a social worker. During this timeframe, Devi complained to the various workers that the appellant angered easily and regularly took out his frustrations on the child. She accused him of shaking the baby, tapping him on the head and stomach, swinging him back and forth while holding him upside down by the ankles and slapping him on the face on a daily basis. She also told the workers that she was afraid of the appellant and asked that he not be informed of her complaints.
[7] On November 24, 1995, Devi noticed a bruise on Darshand's cheek. She contacted Dr. Fishman, the child's pediatrician, and reported that the appellant had either bitten the child or kissed him too hard on the face. That afternoon, she was visited by Ms. Broaderip and Mr. Freedman, and she and Ms. Broaderip took the child to the Sick Children's Hospital to determine whether he had any old injuries. The results were negative. In the meantime, Mr. Freedman arranged a meeting with the appellant and spoke to him about his alleged mishandling of the child. The appellant expressed surprise and told Mr. Freedman that he would never hurt the child.
[8] Throughout the month of December 1995, Devi continued to meet with the various workers and she also kept in touch with Dr. Fishman. She reported that the appellant was no longer mishandling the child and, according to the workers, Darshand was growing well and appeared healthy and alert. They did, however, note that in the early part of December, Devi appeared lonely, isolated and unhappy and she seemed to be afraid to speak openly.
[9] After December, Devi had no further contact with the workers until February 12, 1996, when Queenie Broaderip paid her last visit to the couple's apartment. On that occasion, Ms. Broaderip noted that the baby was thriving and she described Devi as being "proud and joyful". On February 15, Mr. Freedman telephoned the couple about a public nurse referral and he described the appellant as being very happy.
[10] That is how matters stood until the early morning hours of February 16, 1996, when, at about 7:00 a.m., while preparing Darshand for a bath, Devi noticed froth coming from his mouth. Alarmed by this, she and the appellant decided that the child should be seen by Dr. Fishman and they attended at her office at 8:45 a.m.
[11] According to Dr. Fishman, the child was undergoing seizures and having difficulty breathing. Dr. Fishman, her secretary, the appellant and Devi rushed Darshand to the Scarborough Centenary Hospital. He was later transferred to the Hospital for Sick Children where he remained in a coma for two days before succumbing to his injuries on February 18.
[12] An autopsy was performed on Darshand the next day. The results, released several months later on May 23, 1996, revealed that the child had suffered massive brain damage from being shaken back and forth in an extremely violent fashion. In addition, bruising was observed around the child's right ear, left eye, right cheek and at the back of his head on the left side.
[13] According to the pathologist, Dr. Taylor, the injuries to the brain likely occurred two days before the child's death, three at the outside. He was unable to estimate with any degree of certainty the length of time between the infliction of the fatal injuries and the appearance of related symptoms in the child. Dr. Mian, on the other hand, an expert in child abuse from the Hospital for Sick Children, testified that the ill- effects from the severe shaking would have been apparent immediately and the child would not have functioned normally thereafter.
[14] On the evening of February 16, 1996, while the child remained in critical condition at the hospital, the police attended at the couple's apartment and conducted separate interviews with the appellant and Devi. At that time, Devi told the police that the baby had woken up crying on the morning of the 16th at about 4:00 a.m. and he appeared to be ill. She stated that she and her husband fed the baby and put him back to sleep but he woke up again and would not stop crying. Several hours later, at around 7:00 a.m., as she was preparing a bath for Darshand, she noticed froth coming from his mouth and felt him stiffening and fighting for breath. As a result, she and the appellant took the child to Dr. Fishman's office. She was unable to account for the child's condition and could offer no explanation for it. She also told the police that she had never seen the appellant angry with the child and that she and the appellant had no problems in their marriage.
[15] Shortly after the child's death, Devi spoke to a social worker and a doctor affiliated with the Child Abuse and Neglect Unit at the Sick Children's Hospital. She also gave a second statement to the police on April 15, 1996. On each occasion, she described the events relating to the child on the morning of February 16 as she had in her first statement to the police. It was not until May 1996, that her story changed.
[16] According to Devi, in early May 1996, after being assaulted by the appellant and told to leave the apartment, she went to stay with a friend, Dolly Mohan. After receiving a threatening phone call from the appellant, she told Dolly what the appellant had done to her and on Dolly's advice, she called the police. Devi spoke to the police on May 12 and her statement that day formed the basis of her evidence at trial.
[17] At trial, Devi testified that the appellant began mistreating and abusing Darshand from the moment Darshand arrived home from the hospital in early November 1995. The abuse took many forms, including violent shaking, slapping the child in the face on a daily basis, slamming his head into the arm of a couch, holding him upside down by the ankles and flinging him up in the air. She also described the appellant's violence towards her, commencing when she was pregnant with Darshand and continuing until she left home in early May. As with Darshand, the abuse took several forms including punching her in the stomach, pulling her hair and slapping or punching her in the face on a daily basis. When asked why she continued to live with the appellant under these circumstances, she claimed that she had nowhere to go. In cross-examination however, she admitted that the various workers had told her about women's shelters and she also agreed that she had a friend with whom she and the child could have stayed.
[18] With respect to the morning of February 16, she said that Darshand woke up crying at about 4:00 a.m. and she looked after him until about 6:00 a.m. while the appellant slept. The child then went back to sleep but woke up again a short time later and would not stop crying. She left the child in the bedroom and as she was preparing a bottle of formula for him, the appellant appeared in the kitchen, asked her what she was doing and then went back to the bedroom. When she returned to the bedroom, she saw the appellant angrily slap the child on both cheeks. He then took the child to the sofa in the living room and began to feed him. The child continued to cry and Devi watched as the appellant slammed Darshand's head into the arm of the sofa about four times. Devi told the appellant to stop and he returned the child to the crib in the bedroom. At that point, Darshand began to cry louder and the appellant grabbed him by the front of his clothes and began to choke him. He then shook the child violently without supporting his head, following which, he tossed Darshand back into the crib. The baby continued to cry and the appellant grabbed him again, this time throwing him on to the couple's bed. The baby bounced off the bed and Devi managed to catch him just as he was about to hit the floor. According to Devi, at this point, Darshand's eyes were closed, he was crying quietly and saliva was coming out of his mouth. A short time later, the appellant called a taxi and they took the child to Dr. Fishman's office.
[19] The appellant did not testify at trial but he did give two statements to the police, one on February 16 and the other on April 15. In these statements, which the Crown chose to introduce into evidence, the appellant described the events on the morning of February 16 much as Devi had in her initial two statements to the police. In short, he denied injuring the child and he had no knowledge how the injuries had come about. Although not entirely clear, he seemed to indicate that for the most part, he and Devi were together with the child from 4:00 a.m. when Darshand awoke crying, until 7:00 a.m. when they noticed froth coming from his mouth. This of course differed from Devi's trial testimony wherein she stated that she looked after Darshand from 4:00 a.m. to 6:00 a.m. while the appellant slept.
The Issue for the Jury
[20] It was common ground at trial that the fatal injuries to the child were non-accidental and that they were inflicted by either Devi or the appellant but not both. Significantly, the Crown did not suggest, nor was the jury invited to find, that this was a case of joint enterprise. Hence, in order to convict the appellant of any offence, the jury had to be satisfied beyond a reasonable doubt that he, not Devi, was responsible for the child's injuries.
[21] The case for the Crown rested primarily on the testimony of Devi and it is undisputed that her evidence left much to be desired. Crown counsel at trial [not Ms. Yuen] admitted as much in his closing address to the jury, and the trial judge, in his charge, told the jury that they could "find her evidence to be just shot full of weaknesses, contradictions and important lapses of memory". Not surprisingly, the frailties in Devi's evidence formed the basis of the appellant's defence, the essence of which was that the jury could not be satisfied beyond a reasonable doubt that it was the appellant, as opposed to Devi, who had inflicted the fatal injuries to the child. Manifestly, there was no onus on the appellant to prove that Devi was the culprit. Rather, the onus lay with the Crown to prove beyond a reasonable doubt that she was not.
[22] Against this backdrop, I turn to the grounds of appeal.
Ground 1: Did the trial judge err in instructing the jury that there was no evidence to support an inference that Devi inflicted the fatal injuries?
[23] At p. 825 of the charge, the trial judge instructed the jury as follows:
. . . The prosecution alleges that it was the defendant who caused the death of the baby in this case. The Crown must prove beyond a reasonable doubt that it was he who caused the death. You are asked to consider, of course, all the evidence relating to who it was that caused the death of the infant. There were two people present on the morning of February 16th. There is no dispute about that. There is no evidence to suggest that there was anybody else that could have been present at the time of the event that caused the death of the baby.
Devi Katwaru testified. She came before the Court and she told you what she described as the events of February 16th in the morning. She said that it was the defendant who assaulted, beat, shook and threw the baby in the course of a fit of anger and that he was the one who inflicted the injuries on the baby. When she was cross-examined extensively about her evidence and her testimony generally, it was not suggested to her that she had killed the baby and there is no other evidence to support a suggestion that she did. Therefore, members of the jury, you do not have any evidence on that point to support an inference that she was the person who caused the death of the baby.
(Emphasis added)
[24] Counsel for the appellant contends that it was wrong for the trial judge to instruct the jury that there was no evidence to support an inference that Devi was the person who killed the child. He submits that there was evidence capable of supporting that inference and that the trial judge effectively negated the appellant's defence by instructing the jury to the contrary.
[25] Although I agree with the appellant that the impugned instruction is problematic, I do not share his view that it effectively undermined his primary defence. When the instruction is considered in the context of the charge as a whole, it would appear that the trial judge intended only to suggest that the evidence fell short of establishing that Devi was the one who in fact inflicted the fatal injuries. Although that instruction may have been technically correct, in my view, it was unnecessary and potentially misleading.
[26] As indicated, the issue for the jury was not whether Devi in fact caused the child's death but whether they could be satisfied beyond a reasonable doubt, that she did not. The question that arises from this is whether there was any evidence from which the jury could reasonably infer that Devi may have been the one who inflicted the fatal injuries. In my view, there was.
[27] Taking the evidence against Devi at its highest, as I am entitled to for the purposes of this analysis, I start by observing that she had the opportunity to inflict the injuries to the child between the hours of 4:00 a.m. and 7:00 a.m. on the morning of February 16. Going one step further, if the jury chose to accept her trial evidence that she alone tended to the child between the hours of 4:00 a.m. and 6:00 a.m., her opportunity during that timeframe was exclusive.
[28] Turning to the nature of the injuries, it is clear from the medical evidence that they were not the product of prolonged systematic abuse but consistent instead with a single violent fit of anger. Based on the record, it is conceivable that Devi may have had just such a lapse on the morning in question.
[29] On her own evidence, she admitted to feeling lonely, isolated and depressed in the months leading up to the child's death. The child, she conceded, was very fussy and would cry if put down. He had to be held at all times. While the appellant was at work, she described how she spent the entire day cooped up in a small one-bedroom apartment looking after the child. Whether or not these factors culminated in a momentary fit of rage on the morning of the 16th was, in my view, a live issue for the jury.
[30] Added to this is the uncontroverted evidence that Devi initially lied to the police and others about the events surrounding the child on the morning of the 16th. Although she explained that she did so because she feared the appellant, it was open to the jury to reject her explanation and find instead that her false statements were the product of a guilty mind.
[31] Considered as a whole, I am satisfied that this body of circumstantial evidence was sufficient to support a reasonable inference that Devi may have been the one responsible for the child's injuries. It follows that unless the jury could exclude that possibility, the appellant was entitled to be acquitted.
[32] Viewed in context, the problem with the impugned instruction is not that it had the effect of undermining the appellant's defence but rather, it had the potential of deflecting the jury's attention from the critical issue. That issue, as indicated, was not whether the evidence proved that Devi killed the child but whether the jury could be satisfied beyond a reasonable doubt that she did not.
Ground 2: Did the trial judge err in placing significance on the fact that Devi was not specifically asked whether she inflicted the fatal injuries?
[33] Immediately after instructing the jury that there was no evidence to support an inference that Devi caused the child's death, the trial judge continued as follows:
. . . She was not asked and it was not suggested to her that she caused the death although it could have been asked and she could have been asked if she was the one who in fact caused the death of the baby.
[34] The appellant submits, correctly in my view, that this instruction was misleading and prejudicial in two respects.
[35] First, it left the jury with the erroneous impression that even if Devi had answered the question in the negative, as she surely would have, they could have used her negative response as some evidence capable of supporting an inference that she caused the child's death.
[36] Second, and more significantly, it carried with it the inference, unwarranted in the circumstances of this case, that the question had not been asked because the appellant knew full well that he, not Devi, was the one who had inflicted the fatal injuries. Whether or not the jury drew that inference cannot be known. Suffice it to say that if they did, the appellant was severely prejudiced.
Ground 3: Did the trial judge misdirect the jury on the test to be applied in determining whether a reasonable inference could be drawn from circumstantial evidence?
[37] For reasons outlined earlier, I am satisfied that there was a body of circumstantial evidence from which the jury could reasonably infer that Devi may have been the one who inflicted the fatal injuries to the child. Whether that possibility could be excluded was solely within the province of the jury.
[38] Given the importance of this issue, it was essential that the jury be properly instructed on the test to be applied in determining whether the circumstantial evidence relating to Devi gave rise to a reasonable inference, as opposed to mere speculation, that she may have been responsible for the child's injuries.
[39] Without reproducing the specific passages from the charge, suffice it to say that in the course of his instructions on the law relating to circumstantial evidence, the trial judge told the jury on numerous occasions that they could infer a fact from established facts but only if the inference flowed "easily and logically from [the] other established facts".
[40] The appellant submits, correctly in my view, that the trial judge erred by inserting the word "easily" into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.
[41] In my view, the instruction given by the trial judge was prejudicial because it potentially deterred the jury from drawing the inference that Devi may have been the one responsible for the child's injuries. I say that because even though the inference was available on the record, in all of the circumstances, it was clearly not an easy one to draw. At this stage, there is no way of knowing whether the jury would have drawn the inference absent the erroneous instruction.
Ground 4: Did the trial judge err in using a metaphor that undermined the position of the defence relating Devi's evidence?
[42] As mentioned earlier, the case for the Crown depended largely on the jury's assessment of Devi's credibility and reliability as a witness. A forceful and effective cross- examination by defence counsel revealed numerous inconsistencies and contradictions in her testimony and an inability on her part to remember many details. In view of this, defence counsel quite properly took the position with the jury that it would be unsafe to convict the appellant on the basis of her evidence.
[43] In his charge, the trial judge impressed upon the jury the need to assess Devi's evidence with care and he fairly reviewed some of the more troubling aspects of her testimony. Counsel for the appellant takes no issue with this aspect of the charge. His complaint lies with the instruction given immediately thereafter. The relevant passage from the charge reads as follows:
In making that assessment and in looking at all the evidence and the inconsistencies and so on, which are all very important, I do not intend to in any way minimize it. In doing so you may well want to remember an old saying about not being able to see the forest for the trees. In this case the forest is the apparently undisputed fact that the baby was killed by a violent shaking on the morning of February 16th, 1996. The trees are all the little bits of evidence about the details contained in the various statements and the testimony of Devi Katwaru. It is important to consider all of those details and the evidence and the submissions of counsel in relation to them. But remember not to get so involved in the detailed examination of the trees that you lose sight of the forest.
(Emphasis added)
[44] The trial judge repeated this instruction on two further occasions, once in response to a question from the jury requesting a copy of his charge, [See Note 1 at end of document] the other after reading back a portion of the evidence sought by the jury. The third and final instruction, reproduced in full below, occurred around 2:10 p.m. on day two of the jury's deliberations:
Take sometime [sic] to relax, you are really wearing yourselves to a frazzle. Go about it calmly and dispassionately, do not get too involved in looking at the trees, keep an eye on the forest.
Notably, after receiving this instruction, the jury returned one hour later with its verdict.
[45] Counsel for the appellant submits that the metaphor used by the trial judge was inappropriate because it tended to minimize the weaknesses in Devi's evidence at the appellant's expense. The jury, he contends, was effectively told that the child's death was a product of homicide and that the jury should bear this in mind before letting the appellant go free on the basis of the frailties associated with Devi's evidence.
[46] I agree with this submission. With respect to the trial judge, if the metaphor had any place in the charge, which is doubtful, it should have been put on the basis that the forest was "who inflicted the injuries", not the uncontroverted fact that the baby's death was the product of a homicide.
Ground 5: Did the trial judge err in his instructions about the use the jury could make of the appellant's prior acts of violence towards the child?
[47] It will be recalled that the various social and healthcare workers gave evidence about their conversations with Devi in the month of November 1995 after the child had returned home from the hospital. In those conversations, Devi reported that the appellant was physically mistreating the baby and that she was afraid of him.
[48] After reviewing with the jury the evidence given by the workers and specifically, what Devi had reported to them about the appellant's abusive conduct, the trial judge instructed the jury as follows:
This evidence of the previous acts and the previous conduct is before you because it is relevant to the issues in this case. It is relevant to show a pattern of conduct by the defendant relating to the baby if you accept the evidence. It is also relevant to the issue of the fact of the long delay from February 16 to May 12 in Devi reporting the real reason for the death to the police. That is what she said was the real reason. It is also relevant to explain why she lied in her earlier statements, because as she said, she was afraid and that was what she had testified to. You can use that evidence for those purposes relating to the evidence of the previous conduct and her fear and her explanation as to why she lied because of the fear.
(Emphasis added)
[49] Following this instruction, the trial judge provided a limiting instruction designed to ensure that the jury did not misuse the "bad character" evidence. That instruction forms a separate ground of appeal and more will be said about it shortly.
[50] For the moment, the issue of concern arises from the passage quoted above, in which the trial judge directed the jury on the uses that could be made of the appellant's prior acts of misconduct. The problem with that instruction lies not in the uses identified by the trial judge but in his failure to instruct the jury that before the evidence could be used for the purposes outlined, they first had to be satisfied that the misconduct reported to the workers by Devi did in fact occur. Manifestly, the evidence of the workers was not admissible as original evidence. At most, it was admissible to show consistency on Devi's part and to rebut the defence suggestion that her evidence of prior misconduct was the product of recent fabrication.
[51] The trial judge did not instruct the jury along these lines. Instead, he led the jury to believe that the evidence of the workers could be used as original evidence if they accepted it.
[52] In my view, this constituted serious error. Manifestly, the jury had no reason to disbelieve the evidence given by the workers as to the content of their conversations with Devi. For the most part, the workers had reduced those conversations to writing and there was no reason to doubt the accuracy of the notes which they used to refresh their memory. The issue, however, was not whether the jury accepted the workers' evidence but whether they were satisfied, based on Devi's trial testimony, that she was telling the truth about the previous acts of misconduct. Manifestly, this was a live issue for the jury.
[53] Apart from Devi's evidence, there was no independent evidence capable of confirming her allegations of prior abuse. Significantly, on the one occasion that the child was taken to the hospital on November 1995 because of a bruise on his cheek, the examination for prior injuries proved negative. As well, on the same date, in his conversation with Mr. Freedman, the appellant categorically denied abusing the child or mishandling him in any fashion.
[54] Accordingly, the trial judge erred in leaving the jury with the impression that they could effectively take as a given the prior acts of abuse attested to by Devi. As indicated, the error was serious and may well have prejudiced the appellant.
Ground 6: Did the trial judge fail to provide the jury with a proper limiting instruction on the bad character evidence?
[55] After explaining to the jury the uses that could be made of the appellant's prior acts of misconduct, the trial judge provided the following limiting instruction to the jury:
You must not, however, and I caution you on this specifically, use that evidence of previous conduct as a basis for an inference that the defendant was a person of violent character and for that reason alone was therefore more likely to have committed the offence with which he is charged, that is the offence on February 16, 1996. Let me repeat that. You can use that evidence for those purposes related to the conduct to the baby and for the explanation of the delay in reporting to the police. You must not, however, use that evidence of previous conduct as a basis for an inference that the defendant was a person of violent character and for that reason alone was therefore more likely to have committed the offence on February the 16th, 1996.
(Emphasis added)
[56] The appellant takes issue with the trial judge's use of the words "for that reason alone". In his submission, those words watered down the limiting instruction by leaving the jury with the erroneous impression that they could combine the appellant's propensity for violence with other evidence to establish guilt.
[57] In my view, although it would have been preferable had the trial judge avoided using the words "for that reason alone", I am not persuaded that the impugned instruction constituted reversible error. Of the various uses the jury could make of the appellant's prior acts of misconduct, assuming he committed them, at least some could be used as positive evidence of guilt. For example, the jury could have used the prior acts of misconduct as evidence of the appellant's animus or hostility to the child and as evidence of a pattern of abusive conduct towards the child. To the extent the jury made such findings, they could then be used, along with the other evidence, as positive evidence to prove the appellant's guilt.
[58] Accordingly, even though the trial judge should not have included the words "for that reason alone" in the limiting instruction, in the circumstances, I am not satisfied that their use was fatal.
Conclusion
[59] The trial judge committed five errors in his charge to the jury. Admittedly, some were more serious than others. Considered cumulatively, I am not persuaded that absent the errors, the verdict would necessarily have been the same. Accordingly, this is not a case in which the curative proviso in s. 686(1)(b)(iii) of the Code can safely be applied. I would therefore allow the appeal, set aside the conviction and direct a new trial on the charge of manslaughter.
Appeal allowed.
Notes
Note 1: The trial judge's failure to comply with this request forms a separate ground of appeal. Based on the record, I am satisfied that in the circumstances, the alternative measures taken by the trial judge were proper and I would not give effect to this ground of appeal.