DATE: 20020315
DOCKET: C29500
COURT OF APPEAL FOR ONTARIO
ABELLA, SHARPE and SIMMONS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Mark J. Sandler and Christopher Sherrin for the appellant
Respondent
- and -
ANDRONICOS VANEZIS
David Lepofsky and John McInnes, for the respondent
Appellant
Heard: March 4, 2002
On appeal from the conviction imposed by Justice C. Stephen Glithero, sitting with a jury, dated October 9, 1997.
BY THE COURT:
[1] The appellant was convicted of the second degree murder of Pamela Bonn after a trial before Glithero J. and a jury. Pamela Bonn was beaten to death in May 1995. The central issue at trial was the identity of her killer.
[2] The Crown’s case against the appellant was entirely circumstantial. There was no evidence of motive or even evidence that the appellant knew the deceased. It was admitted at trial that the murder occurred in the appellant’s apartment. The deceased’s body was found in a nearby park. The Crown led evidence that a man resembling the appellant was seen pushing a recycling bin from the apartment building to the park. The appellant was found at his apartment shortly after the movement of the recycling bin. The Crown’s theory was that the appellant committed the murder and moved the body in the recycling bin. The appellant testified at trial denying any involvement in the murder.
[3] Both the prosecution and defence relied upon forensic evidence or the lack thereof in support of their respective positions.
[4] On appeal to this court, the appellant raised a number of grounds of appeal and also made an application to introduce fresh evidence. When the appeal was heard, we dealt first with the application to introduce fresh evidence. At the conclusion of that argument, we announced our decision that the fresh evidence should be admitted and a new trial ordered. Counsel agreed that in those circumstances it was not necessary to deal with the remaining grounds of appeal. Our brief reasons for admitting the fresh evidence follow.
[5] The appellant applied to introduce three items of fresh evidence. Two items were DNA evidence relating to the clothing and body of the deceased. Forensic examination had found three blood stains on the blue jeans that the deceased was wearing when her body was found, and a swab had been taken of a substance, later found to be saliva, from the area around the deceased’s left nipple. Although DNA analysis of one of the blood stains and of the saliva were attempted prior to trial, there was insufficient DNA present to obtain a result with the technology available at the time.
[6] After the trial, the appellant’s counsel asked the Centre for Forensic Sciences to conduct further DNA testing using new DNA technology. DNA results were obtained for a previously untested blood stain and for the saliva sample. The blood stain was found to have a mixed DNA profile. The dominant profile matched the deceased and the subordinate profile came from at least one male. The appellant was excluded as a potential source of the subordinate male profile, and the Crown conceded that the likely source was Jeffrey Hertel, a man who had a relationship with the deceased and whom the appellant had advanced at trial as an alternative perpetrator of the crime. The saliva sample excluded both the appellant and Hertel as potential sources.
[7] The third item of fresh evidence related to scabs found on the appellant’s hands at the time of his arrest. The Crown suggested at trial that the appellant had wounded his hands while beating the deceased, and that the appellant’s scabs were signs of early healing of his wounds. However, the appellant testified that the scabs were the result of having scraped his hands on a cement ashtray outside a hospital when scavenging for cigarette butts. The Crown introduced police photographs purporting to depict all ashtrays outside the hospital and put the photographs to the appellant in cross-examination. None of the ashtrays shown in the photographs were made of cement and all had smooth linings. However, following the trial, the appellant obtained evidence from hospital employees indicating that there had likely been cement ashtrays in the location suggested by the appellant at the relevant time.
[8] In R. v. Smith, 2001 ONCA 20968, [2001] O.J. No. 4981 at para. 70, Simmons J.A. summarized the general principles governing the admission of fresh evidence as follows:
The general principles applicable to the admission of fresh evidence are well established. They are as follows:
Section 683 of the Criminal Code permits an appellate court to accept “fresh evidence” where it is in the interests of justice to do so.
The interests of justice include an interest in preventing miscarriages of justice by having guilt determined based on all of the available evidence, and also an interest in the integrity of the criminal process to which finality and order are essential.
The importance of finality to the integrity of the criminal process clearly requires that special grounds be shown before fresh evidence is admitted. Fresh evidence must not be admitted as a matter of course.
The four criteria for determining whether it is in the interest of justice that fresh evidence be admitted are set out in Palmer [R. v. Palmer, 1979 SCC 8, [1980] 1 S.C.R. 759]:
i. 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;
ii. the evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue in the trial.
iii. the evidence must be credible in the sense that it is reasonably capable of belief; and
iv. 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.
Satisfaction of the first Palmer criterion is not a condition precedent to admissibility of fresh evidence, but rather one factor to be considered in determining whether the interests of justice warrant its admission.
The second, third, and fourth Palmer criteria are conditions precedent to admissibility of fresh evidence.
[9] With respect to the DNA evidence, the Crown concedes that the due diligence criterion has been met and that the evidence is credible. The Crown submits, however, that the evidence does not bear on a decisive or a potentially decisive issue at trial and that, when taken with all of the other evidence adduced at trial, the DNA evidence could not reasonably be expected to have affected the result.
[10] With respect to the evidence regarding the ashtrays, the Crown concedes that the evidence is credible, but submits that none of the three other Palmer criteria have been met.
[11] We are unable to accept the Crown’s submissions. We are satisfied that the DNA evidence meets all four Palmer criteria. The issue at trial was the identity of the killer. The Crown’s case against the appellant was anything but overwhelming. An earlier trial had resulted in a hung jury. The new DNA evidence, which might have inculpated the appellant, failed to connect him to the deceased’s body or clothing. The probable source of the DNA sample from the blood stain was a boyfriend of the deceased and the very man suggested by the appellant as an alternative suspect. While the Crown suggests that this man’s DNA could have found its way to the deceased’s blue jeans in some other manner, we do not accept the Crown’s submission that this possibility effectively explains away the potential significance of the fresh DNA evidence. In our view, the appellant has made a sufficient case that, when taken with the other evidence adduced at trial, this fresh evidence could reasonably be expected to have affected the result.
[12] We are also satisfied that the evidence regarding the ashtrays meets the Palmer criteria. While this evidence could have been obtained at trial through due diligence, courts have held that the due diligence criterion is not absolute, but represents only one factor, the absence of which is not necessarily fatal. In R. v. Warsing, 1998 SCC 775, [1998] 3 S.C.R. 579, the Supreme Court of Canada held that evidence should be admitted even if it fails to meet the due diligence criterion, if the evidence is compelling and the interests of justice require that it be admitted.
[13] Although the fresh evidence regarding the ashtrays may be less compelling than the DNA evidence, the evidence might well have had an effect on the jury’s conclusion. The police photographs likely adversely affected the appellant’s credibility in the eyes of the jury by suggesting that the appellant was not telling the truth with respect to the presence of the cement ashtrays. The fresh evidence bolsters the appellant’s explanation of what the jury might otherwise have seen as incriminating evidence.
[14] In our view, taken as a whole, and considered in light of all of the other evidence in the case, the three items of fresh evidence are relevant and could reasonably be expected to have affected the result in this case.
[15] Accordingly, we would set aside the conviction and order a new trial.
“R.S. Abella J.A.”
“Robert J. Sharpe J.A.”
“J.M. Simmons J.A.”
Released: March 15, 2002