DATE: 20051215

DOCKET: C37391

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ANTHONY MELBOURNE LEE (Appellant)

BEFORE:

ROSENBERG, FELDMAN and SIMMONS JJ.A.

COUNSEL:

Philip Campbell

for the appellant

Roger A. Pinnock

for the respondent

HEARD:

November 30, 2005

On appeal from conviction by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury, dated April 1, 1999.

E N D O R S E M E N T

[1] The appellant appeals from his conviction for first-degree murder by a court composed of Ewaschuk J. and a jury. It was the theory of the defence, dependent entirely on the appellant’s evidence, that after the appellant had consensual vaginal and anal sex with the victim, her common law husband, Mr. Margol, entered the apartment and killed her. Counsel for the appellant raises a number of issues that he says improperly affected the appellant’s credibility in a case that turned on the assessment of his credibility as against the credibility of Mr. Margol, who testified for the Crown. For the following reasons we would not give effect to any of these grounds of appeal.

Cross-examination of the appellant

[2] During his cross-examination of the appellant, Crown counsel at trial (not Mr. Pinnock) suggested that the appellant had tailored his evidence in response to the Crown disclosure and because he heard the Crown evidence. Both suggestions were improper since they could have the effect of turning constitutional and statutory safeguards into a trap for the accused. However, these two suggestions occurred in the course of a lengthy cross-examination extending over three days. It is not realistic to expect that these brief suggestions could have influenced the jury.

[3] The appellant submits, however, that the improper cross-examination was exacerbated by Crown counsel’s jury address in which she contrasted the appellant’s opportunity to tailor his evidence as against that of Mr. Margol, who she alleged did not have an opportunity to tailor his testimony by hearing the other evidence.

[4] Defence counsel addressed this issue directly in his jury address. He explained how it was apparent that the appellant had not tailored his evidence. There was little force to Crown counsel’s suggestion and we see no likelihood that the jury would be diverted from a proper assessment of the appellant’s credibility. The appellant relies on the cases of R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.) and R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.) to show that portions of the Crown’s cross-examination of the appellant and the Crown’s jury address were improper. However, this case is different from White and Peavoy. In this case the Crown’s cross-examination did not occupy the prominent position that it did in White, where the court found that the impugned cross-examination did not give rise to a miscarriage of justice. In addition, the impugned portions of the Crown’s jury address did not bear so directly on the central issues in the case that the appellant was deprived of a fair trial, as was the case in Peavoy.

The appellant’s criminal record

[5] The appellant had a lengthy criminal record that included convictions for violence, including sexual assault causing bodily harm and aggravated sexual assault. Given the circumstances of this murder, a killing allegedly committed in the course of a sexual assault, it was important that the jury understand the limited use to be made of the appellant’s record. When the record was introduced during the appellant’s testimony and again in the charge to the jury, the trial judge gave the jury a complete and proper instruction. Regrettably, the trial judge then invited the jury on two occasions to use the record as a piece of substantive evidence in support of the Crown’s case rather than only for assessing the appellant’s credibility.

[6] The trial judge told the jury that the fact that the appellant had no record for weapons offences supported the Crown’s theory that the appellant did not pull a gun on Mr. Margol before leaving the deceased’s apartment. In addition, the trial judge suggested to the jury that because of the appellant’s long record, they could find that the appellant had a motive to kill the deceased to avoid her testifying against him for sexually assaulting her. Both directions were improper. The criminal record was not available for either purpose. But, these were very minor points in an almost overwhelming Crown case, which the appellant attempted to meet with an incredible story.

[7] The real concern in this case was the risk that the jury would use the evidence of the prior sexual assaults to reason that the appellant had a propensity to sexually assault the victim. On that issue, the trial judge properly instructed the jury at length and explicitly directed the jury that they “must not conclude that because the accused had been convicted of aggravated sexual assault that he’s predisposed or has a propensity to commit sexual assault”. On the other hand, he pointed out that as a Crown witness, Mr. Margol’s prior lengthy criminal record was available to show that he was more likely to have killed the victim.

[8] The appellant also submits that the trial judge erred in failing to prevent Crown counsel from cross-examining the appellant on lies he told to the police on occasions unrelated to the investigation of the murder. These lies related to the appellant’s habit of lying to the police about his identity and were extraneous to the case. That line of cross-examination was improper. See R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.) at 444.

[9] Related to this issue is another error by the trial judge in limiting cross-examination of Mr. Margol on his allegedly false complaint to the police about a break-in at his home. This evidence was potentially relevant to Mr. Margol’s credibility. It was not prohibited by the rule against adducing evidence of discreditable conduct not leading to convictions because the rule applies only in favour of the accused.

[10] The appellant submits that the trial judge’s erroneous and asymmetrical application of the Davison rule was unfair and undermined the appellant’s credibility while cutting off a legitimate line of attack on Mr. Margol’s credibility. We are satisfied that these errors did not affect the fairness of the trial and that no substantial wrong or miscarriage of justice was occasioned. Many other significant problems with Mr. Margol’s character were brought to the jury’s attention. For example, counsel for the defence was able to vigorously cross-examine Mr. Margol on his criminal record and the underlying facts of his convictions. The inability of the defence to fully explore one minor area of dishonesty would not have prevented the jury from having a full understanding of his credibility.

[11] We are also satisfied that the cross-examination of the appellant did not unfairly impact on his credibility. Trial counsel, (not Mr. Campbell) who was vigilant in protecting the appellant's rights, did not object to the line of cross-examination. The appellant ably responded to Crown counsel’s questions. There were much more serious difficulties with the appellant’s credibility. In particular, the appellant’s record for dishonesty which included a conviction for public mischief, was already legitimately before the jury.

Failure to permit cross-examination of Mr. Margol on the deceased’s prior sexual conduct

[12] Counsel for the defence attempted to adduce evidence from Mr. Margol that the deceased had expressed an interest in having anal sex with him. The defence argued that the jury might consider acts of anal intercourse unusual or repugnant. The defence therefore sought to adduce this evidence to bolster the appellant’s claim that he had consensual anal sex with the deceased. The defence was concerned that otherwise the jury would reject the claim that the act of anal sex was consensual. The probative value of this evidence largely depended on the improper reasoning that because a woman would consent to sexual acts with one person she would be more likely to have consented to the same sexual acts with another person. The legitimate probative value of this evidence was so limited that it was open to the trial judge to find that the risk of prejudice through improper reasoning substantially outweighed the evidence’s slight probative value.

Rhetorical device

[13] In her jury address, Crown counsel used the rhetorical device of invoking the deceased as another witness at the trial. This device should have been avoided because of the danger of improperly appealing to the jury’s sympathy rather than asking the jury to decide the case on the basis of the evidence. In this case, however, the device did not prejudice the appellant. Crown counsel merely demonstrated that the positioning of the deceased’s body and other aspects of the scene in the deceased’s apartment tended to render the appellant’s version of events improbable.

Meaning of sexual assault

[14] We agree with the appellant that a distinct act of anal intercourse after and separate and apart from the killing could not found a conviction for constructive first degree murder. Once the victim was dead, any sexual activity with her remains was not the offence of sexual assault. We do not need to consider whether if the sexual act was part of the same transaction that caused the death, the direction that “anal intercourse after death also constitutes a sexual assault” might have been proper. See R. v. Muchikekwanape (2002), 2002 MBCA 78, 166 C.C.C. (3d) 144 (Man. C.A.). In this case, there was no realistic version of the events that would have led the jury to convict the appellant of first degree murder on the basis of sexual activity after the death. The appellant’s story was of consensual sexual activity and then a distinct break before the killing by Mr. Margol. On the Crown’s theory, the appellant sexually assaulted the victim and then killed her as part of that transaction to prevent her from complaining to the authorities. There was no evidentiary or theoretical basis for finding that the sexual acts took place after the killing.

Disposition

[15] Accordingly, the appeal from conviction is dismissed.

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“Janet Simmons J.A.”