DATE: 20051101

DOCKET: C36184

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DONALD WAYNE CAMPBELL (Appellant)

BEFORE:

CATZMAN, MacFARLAND and ROULEAU JJ.A.

COUNSEL:

Colin L. Campbell

for the appellant

Eric Siebenmorgen

for the respondent

HEARD:

October 19 and 20, 2005

On appeal from the conviction entered by Justice Roland J. Haines of the Superior Court of Justice, sitting with a jury, dated December 21, 1999.

E N D O R S E M E N T

[1] This is an appeal by Donald Wayne Campbell from his conviction for first degree murder before Haines J. and a jury.

[2] Four principal grounds of appeal were advanced by the appellant:

1. the unreasonableness of the verdict and the failure of the trial judge to adequately instruct the jury as to the use to be made of circumstantial evidence and as to the weaknesses of the Crown's theory;

2. the improper admission into evidence of statements made by the appellant;

3. failures in the police’s investigation, the inadmissibility of the testimony of a jailhouse informant, Robert Moorehead and, in the alternative, the adequacy of the Vetrovec warning the trial judge gave to the jury; and

4. failure of the trial judge to adequately assist the jury on the planning and deliberation element of the offence.

The first ground

[3] The essence of the appellant's first ground was that his evidence and theory respecting the events in question were more compelling than those presented by the Crown or, at least, should have left the jury with a reasonable doubt. Some examples that he gave were the improbability of having planned and executed the murder of his wife in the garage adjacent to the family room where his children were; the absence of tissue, hair or blood on the pestle found on the back floor of the red Corsica automobile; and the source of the evidence given by the informant that a blood-stained plastic sheet could be found in the garage which was more likely to have come from the police than from the appellant.

[4] In our view, it was for the jury to weigh the evidence respecting these matters and there was evidence before them from which they could reasonably conclude that the events had transpired in accordance with the Crown theory and that the appellant's version did not raise a reasonable doubt.

[5] We see no merit in the submission that the trial judge did not instruct the jury as to the use that could be made of circumstantial evidence and did not outline with sufficient detail the alleged weaknesses in the Crown's theory. In a carefully prepared charge, the trial judge properly instructed the jury on circumstantial evidence and outlined both the defence and the Crown's theories. He prepared a balanced charge, in which he fairly reviewed the defence theory and provided an adequate summary of the evidence. He was not required to marshall for the jury every piece of evidence that might have been favourable to the defence.

The second ground

[6] The appellant made a number of statements, which were admitted into evidence by the trial judge. In his argument, counsel for the appellant focused on a videotaped statement and a subsequent utterance to a Detective Constable Peer that was made immediately after the videotaped interview. He maintained that the videotaped statement was obtained by trickery and that the appellant was not made aware of the extent of his jeopardy and was denied the opportunity to speak to counsel.

[7] The voluntariness of all of the appellant's statements was fully canvassed by the trial judge in a voir dire. He made a number of factual findings in his ruling, concluding beyond a reasonable doubt that the statements were voluntary. Having reviewed his ruling, we are satisfied that he properly considered all of the evidence before him, did not misapprehend the evidence and reached an appropriate conclusion on the basis of that evidence and on the application of correct legal principles.

[8] The appellant argued that he was denied the opportunity to speak to counsel. We note that the appellant did not testify on the voir dire to make such an allegation and find that a fair reading of the transcript of the videotaped statement does not support his contention.

The third ground

[9] The appellant made a number of complaints about the conduct of the police investigation into the death of his wife. We are satisfied that there is no substance to these complaints. The police carried out a proper investigation and there was no evidence of police misconduct.

[10] One of the witnesses called by the Crown was a so-called "jailhouse informant" named Robert Moorehead. In his testimony, he related a detailed description of statements allegedly made to him by the appellant as to how the crime was planned and perpetrated. Moorehead was undoubtedly an unsavoury witness. He had an extensive record which included several convictions for crimes of dishonesty. The appellant takes the position that Moorehead ought not to have been permitted to testify or, in the alternative, that there should have been a stronger Vetrovec warning and, in particular, that the trial judge ought to have set out for the jury the sources other than the appellant, including the police, from whom Moorehead could have gotten the information which he attributed to the appellant.

[11] The appellant argued at trial that a voir dire should be held to vet the evidence of Moorehead. The appellant submitted that, as a jailhouse informant, Moorehead's evidence was presumptively inadmissible. The trial judge rejected the appellant's submission and ruled that it was not open to him to conduct a voir dire on the question of admissibility. He relied on this court's decision in R. v. Buric (1996), 1996 1525 (ON CA), 106 C.C.C. (3d) 97, aff'd (1997), 1997 380 (SCC), 114 C.C.C. (3d) 95 (S.C.C.). As Labrosse J.A. said, at p.111-112:

The admission of evidence which may be unreliable does not per se render a trial unfair. It is for the jury to assess the quality of the evidence.

We find no error in the trial judge’s ruling.

[12] With respect to the adequacy of the Vetrovec warning, the trial judge reviewed Moorehead's testimony and the testimony of the appellant at some length. He pointed out striking similarities and focused the jury's attention on specific frailties in Moorehead's testimony, pointed out lies and discrepancies in his testimony, and raised with the jury the possibility of Moorehead having acquired the information while in jail not through conversations with the appellant but rather, by stealing notes exchanged between the appellant and his counsel. The trial judge identified Moorehead as a witness whose evidence should be approached with the utmost care and caution; he identified specific factors that brought Moorehead's credibility into serious question; and he said that, as cautious and prudent jurors, they should seek confirmation of his evidence from other sources before they relied on it to help them decide this case.

[13] This is not a case where the evidence against the appellant rested solely, or even primarily, on the evidence of a jailhouse informant. Moorehead's evidence was a piece of the evidentiary puzzle that clearly fit with the others but it was not required to secure the appellant's conviction.

[14] In the circumstances, the trial judge's Vetrovec caution was sufficient. He was not required to itemize all of the evidence which, on the defence theory, would impugn Moorehead's testimony. Had he done so, he would also have been obliged to review the substantial amount of inculpatory evidence which was confirmatory of Moorehead's evidence.

The fourth ground

[15] The appellant submitted that the only evidence that the killing was planned and deliberate was the evidence of the jailhouse informant. The trial judge ought to have cautioned the jury about relying on this evidence and ought to have referred the jury to evidence showing the improbability of the death having been planned and deliberate.

[16] We disagree with the appellant’s submission that the only evidence that the crime was planned and deliberate came from the jailhouse informant. For example, the jury could have rejected the appellant’s testimony and drawn an inference that the killing was planned and deliberate from the presence and use by the appellant in the murder of the pestle and the plastic sheet on which much of the victim’s blood was found.

[17] Having reviewed the trial judge’s charge with respect to these elements of the offence, we are satisfied that he properly set out the burden, reminded the jury of his earlier caution with respect to Moorehead’s evidence and that, overall, it was balanced and fair.

[18] For these reasons, the appeal is dismissed.

“M.A. Catzman J.A.”

“J.L. MacFarland J.A.”

“Paul S. Rouleau J.A.”