DATE: 20010419
DOCKET: C24765
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., FINLAYSON and LABROSSE JJ.A.
B E T W E E N :
John Norris,
HER MAJESTY THE QUEEN
for the appellant
Respondent
- and -
Michael Bernstein,
for the respondent
WILLIAM JOHN THURSTON
Appellant
Heard: March 22, 2001
On appeal from his conviction by Justice C. Stephen Glithero on January 29, 1996
LABROSSE J.A.:
The appellant appeals his conviction on January 29, 1996, for second degree murder.
The appellant and his co-accused Paul Moscato (“Moscato”) were charged with the brutal killing of Thomas Wayne McCoy (the “victim”) who died as a result ofnineteen blows to the head and face inflicted with a hatchet in or about his pickup truck. The appellant and Moscato were ordered to be tried separately and the appellant’s trial proceeded first.
The Crown’s case was based on fingerprint evidence from the victim’s truck, forensic evidence, the evidence of the appellant’s conduct before the killing and evidence of his conduct after the killing, alleged to be indicative of consciousness of guilt. Included in this latter conduct were the actions of the appellant in removing some of the clothing from the victim, taking the victim’s wallet, retrieving the murder weapon (a hatchet) and taking all of these things with Moscato to Moscato’s home. There, the appellant instructed Moscato to remove his bloody clothing and take a shower, which Moscato did. The appellant had some blood on him, and he removed some of his clothing and placed it in a plastic garbage bag along with the bloody clothing of Moscato and the victim. He also threw the victim’s wallet into the bag and the hatchet as well. The following day, the appellant took the garbage bag and went with a man named Carruthers to the banks of the Grand River. He threw the hatchet into the river and burned the wallet and the clothing or most of it.
The appellant did not testify or otherwise call a defence. He relied primarily on a statement given to the police approximately two months after the incident in support of his claim that he was nothing more than an accessory after the fact to the murder. (In a first statement given shortly after the killing, he denied any participation in the murder.)
The appellant raises issues with respect to (1) the evidence of consciousness of guilt, (2) the admissibility of the evidence of tattoos, (3) the evidence of an alleged attack on an unknown victim and (4) the compliance of the jury charge with Lifchus principles.
(1) The evidence of consciousness of guilt
The trial judge’s instructions to the jury followed the judgment of this court in R. v. Court (1995), 1995 CanLII 1741 (ON CA), 99 C.C.C. (3d) 237, (Ont. C.A.) which was subsequently overruled by the decision in R. v. White (1998), 1998 CanLII 789 (SCC), 125 C.C.C (3d) 385, (S.C.C.). The appellant acknowledges that the trial judge’s instructions regarding consciousness of guilt were unduly favourable to the appellant because they directed the jury to apply the criminal standard of proof to the evidence on this issue. However, the appellant submits that the charge to the jury was flawed because a “no probative value” instruction was required with regard to the appellant’s post-offence conduct and none was given. In support of his argument, he relies on the decisions of the Supreme Court of Canada in R. v. Arcangioli (1994), 1994 CanLII 107 (SCC), 87 C.C.C (3d) 289 (S.C.C.) and R. v. White, supra, which stand for the proposition that evidence of post-offence conduct should not be put to the jury unless it is relevant to the determination of a live issue in the case. As a general rule, where the accused’s post-offence conduct reflects consciousness of guilt of more than one offence and where the accused admits culpability for one of theses offences, the trial judge ought to instruct the jury that the evidence has no probative value with regards to any particular offence. In White, Major J. was careful to add at pp. 400-401:
[It] will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probative value” instruction like the one required in Arcangioli will be called for only in limited circumstances. [Emphasis added.]
In my view, the rule in Arcangioli does not apply to the facts of this case and a “no probative value” instruction was not required. Moreover, the post-offence conduct of the appellant was relevant to the issue of appellant’s culpability in the death of the victim.
As pointed out by Crown counsel, the fundamental issue in this case was whether the appellant was guilty of murder, either as a principal or as an aider and abetter. The appellant’s admission that he was an accessory after the fact to the murder did not narrow the issue before the jury as was the case in White. He continued to deny any involvement in the offence with which he was charged, that is the murder itself. Furthermore, unlike the situation in Arcangioli where the actus reus of the assault was admitted and the only issue was whether it was a common assault or an aggravated assault, here the appellant continually denied that he committed murder. The jury was still required to determine who killed the victim. In resolving this issue, it was of substantial probative value that the appellant had taken steps to conceal and destroy evidence and that it was the appellant, not Moscato, who clearly took the initiative to cover things up. The admission that he was an accessory did not diminish the probative value of the after-the-fact conduct as evidence of consciousness of guilt of murder. On the contrary, the evidence of post-offence conduct was circumstantial evidence that was relevant to an issue in dispute, namely the attribution of that conduct to one offence rather than another: White, p. 402, para. 30.
I agree with the Crown’s position that this case differs from Arcangioli in two further significant ways.
Firstly, in Arcangioli, the accused testified. In the present case, the appellant did not testify, nor did he make any formal admission under oath regarding his commission of the offence of being an accessory after the fact to murder. The evidence is part of a second statement made to the police which is contrary to his first statement. Accordingly, it was open to the jury, as instructed by the trial judge, to decide that the statement was untrue and, therefore, could still itself serve as a basis to infer consciousness of guilt.
Secondly, in Arcangioli, there was post-offence conduct (flight) that was capable of supporting an inference leading equally to two possible offences, one charged and the other admitted by the accused. However, in either case, the accused admitted assaulting the victim and the live issue was whether he was guilty of common assault or aggravated assault. The evidence of flight was not helpful in resolving this issue because it was equally supportive of both the theory of the Crown and the defence. In the present case, the post-offence conduct may well be evidence of the admitted offence of being an accessory after the fact to murder, but it may also be evidence that the appellant was much more than that and was responsible in law for the murder itself. Unlike Arcangioli, the issue here is the identity of the murderer not the appellant’s level of culpability in the murder. Although the accused has acknowledged being an accessory after the fact to murder (and thereby acknowledged the conduct), the evidence of his conduct is still probative for the jury to consider whether this conduct constitutes a manifestation of a guilty conscience in relation to some other offence, namely themurder itself.
The appellant also argues that the “no probative value” instruction was required with respect to the “level of culpability” issue. The trial judge expressed his intention to give the jury this instruction. He did not do so and there is no explanation as to why the instruction was not given. Neither counsel objected to the absence of such instruction.
In my view, a “no probative value” instruction was not required in the circumstances of this casesince thelevel of culpability was never an issue.
The issue was who had killed the victim. The appellant’s position was that he had nothing to do with the homicide. Once the jury decided that the appellant was a participant in the killing there was no issue about the requisite intent to commit murder, as was the case in White, supra. The appellant acknowledges that there was little, if any, room for doubt with respect to the requisite intent to commit murder. Manslaughter was not a live issue and there was no air of reality to such a verdict for the appellant either as a principal or as a party to murder.
The after-the-fact conduct was intended to identify the appellant as the murderer and it was relevant to the question of whether the appellant had committed the murder. The proposed instruction would have been totally superfluous.
This ground of appeal is therefore rejected.
(2) The admissibility of the evidence of the tattoos
According to the evidence, the appellant had two teardrop tattoos under his right eye prior to the death of the victim. There was evidence to show he had admitted that these teardrop tattoos signified that the appellant had killed someone else. The day following the victim’s murder, the appellant had a third teardrop tattoo added under his eye. As such, there was evidence that this third tattoo was an admission of the appellant’s involvement in the death of the victim and this evidence was relevant in light of the appellant’s position that he had nothing to do with the killing.
The trial judge was correct in deciding that this evidence was highly relevant, having regard to the appellant’s claim that he had nothing to do with the murder. Although this evidence was subject to credibility problems, it became a matter for the jury to decide.
Moreover, the trial judge gave the jury a limiting instruction both with respect to the source of this evidence and how it could and could not be used.
There is no error with respect to this ground of appeal.
(3) The evidence of an alleged attack on an unknown victim
The evidence revealed that there was a handprint of the co-accused Moscato on the victim’s truck which contained blood. DNA analysis established that the blood was not from the appellant, from Moscato or from the victim. It came from an unknown person.
At trial, the appellant’s counsel argued that there must have been a mix-up in the samples in the collection or testing process. There was no evidence to this effect. Crown counsel argued that the blood came from an assault on another person before the murder as there was evidence that the appellant and Moscato had talked of killing other persons. The evidence in support of this theory was most tenuous.
In light of the insubstantial nature of this evidence, it would have been preferable if this position had not been advanced by the Crown and had not been left with the jury by the trial judge. However, the trial judge did no more than apprise the jury of the position of the defence and of the Crown. Moreover, it must be remembered that the palm print was not that of the appellant. It was Moscato’s and in some limited way, it inured to the benefit of the appellant as it tended to support the characterization of Moscato as an aggressor.
In these circumstances, no prejudice resulted from this incident.
(4) The compliance of the jury charge with Lifchus principles
Counsel for both parties agree that the trial judge’s instruction to the jury on the principle of reasonable doubt does not meet the standard set out by the Supreme Court of Canada in R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). Indeed, part of the standard language used by the trial judge has been disapproved by the Supreme Court, which is hardly surprising since the impugned charge predates Lifchus by some twenty months. However, as the Supreme Court recently specified, “the principles in Lifchus are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test”: R. v. Avetysan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 at pp. 83-84 (S.C.C.). Indeed, “the instructions given by the trial judge must be considered as a whole, and in the overall context of the case, to determine whether there was substantial compliance with Lifchus”: R. v. Russell (2000), 2000 SCC 55, 149 C.C.C. (3d) 66 at p. 76 (S.C.C.).
A charge on reasonable doubt is in “substantial compliance with Lifchus” when, after reading the charge as a whole, and in the overall context of the case, it does not give rise to the reasonable likelihood that the jury misapprehended the correct standard of proof: R. v. Lifchus, supra at p. 15; R. v. Taylor, 2001 CanLII 24190 (ON CA), [2001] O.J. No. 330 at para. 11 (C.A.); R. v. Thomson, 2001 CanLII 24187 (ON CA), [2001] O.J. No. 661 at para. 16 (C.A.); R. v. F.L.L., [2001] O.J. No. 739 at para. 22 (C.A.); R. v. Guertin, [2000] O.J. No. 4336 at para. 27 (C.A.).
In the present case, considering the charge to the jury as a whole, in the overall context of the case, I am satisfied that it does not give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof. The trial judge correctly instructed the jury in respect of the presumption of innocence, the burden of proof and its association with reasonable doubt. Most importantly, the trial judge said to the jury:
You are not to simply choose between the evidence favouring the Crown and the evidence favouring the accused on essential matters. It is not a matter of simply making a choice as between the two. Rather, the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt.
Proof beyond a reasonable doubt has been achieved when you, as a juror, feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfies the conscience so that you, as responsible jurors, feel bound or impelled to act upon it. Keep in mind that it is rarely possible to prove anything with absolute mathematical certainty. The burden of the Crown is to prove guilt beyond a reasonable doubt, but not beyond a shadow of a doubt. [Emphasis added.]
Although it does not use the explicit words, this language is suggestive that the civil standard of proof is not to be used. It also has the effect of conveying a clear sense that the required standard of proof is more exacting than the balance of probabilities.
In addition, the trial judge gave the jury a proper “W.D.” instruction: R. v. W. (D.), (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).
This ground of appeal is also rejected.
Finally, it must be noted that the fingerprint evidence, the strong forensic evidence, the admissions that the appellant allegedly made to others, and the evidence of after-the-fact conduct made this case an overwhelming one. Moreover, as stated earlier, the appellant did not testify or otherwise call a defence. I see no reason to doubt the correctness of the verdict.
Accordingly, the appeal is dismissed.
(signed) “J. M. Labrosse J.A.”
(signed) “I agree R. McMurtry C.J.O.”
(signed) “I agree G. D. Finlayson J.A.”
Released: April 19, 2001
“R.McM”