DATE: 20060623
DOCKET: C39619
COURT OF APPEAL FOR ONTARIO
SHARPE, JURIANSZ JJ.A. and LANE J. (Ad hoc)
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
MICHAEL BELLAS
Appellant
Richard Posner for the appellant
Sandra Kingston for the respondent
Heard: June 16, 2006
On appeal from judgment of Justice W. Brian Trafford of the Superior Court of Justice sitting with a jury dated October 24, 2002.
BY THE COURT:
[1] The appellant, Michael Bellas, appeals his conviction for second-degree murder of Frank Cochrane. His primary contention is that the trial judge erred by refusing to admit evidence of Cochrane’s propensity for violence.
Facts
[2] Shortly before 7 p.m. on May 13, 2000, a neighbour observed Cochrane just outside the doorway of his apartment wearing pants but no shirt, bent over at 90° with blood all over his back and dripping down from the front part of his body. The witness had the impression he was pulled back into the apartment. The witness reported what he saw to the building security guard who listened at the door of the apartment ten minutes later and heard nothing. The guard knocked on the door without response.
[3] Cochrane was found dead in his apartment on the next day. He had been stabbed over thirty times and had suffered injuries consistent with blunt force. The alcohol concentration in his blood was high. Several knives and a bloody sledgehammer were found in the apartment. Video surveillance captured the appellant re-entering the building shortly after leaving with a garbage bag at approximately 8 p.m. The next day the appellant was seen wearing a pair of gloves, and a few days later, a three-inch cut on the back side of his right hand and, other cuts on his hands were noticed by the building manager.
[4] When questioned by the police the appellant denied any knowledge of Cochrane’s death. He did not testify at trial. His position at trial was that the Crown had not proved beyond a reasonable doubt that he had killed Cochrane and he pointed to another person as the potential killer. On appeal, he does not contest the considerable forensic evidence that supports the jury’s conclusion that he caused Cochrane’s death.
[5] During his trial, the appellant brought an application to introduce evidence of Cochrane’s disposition for deadly violence in order to advance a case for self-defence, provocation and/or reduced intent. The pivotal evidence, in this regard, was the transcript of Cochrane’s plea of guilty to manslaughter on April 5, 1995. The transcript indicated that on the day of the homicide Cochrane had been drinking heavily and ultimately stabbed the victim in the chest with a knife inside the victim’s apartment. Cochrane had been the aggressor in an ongoing argument earlier that day and had been physically separated from the victim by a third-party.
Analysis
[6] A trial judge has a positive duty to refuse to place before the jury a proffered defence that lacks an “air of reality” so as not to mislead or divert the jury’s attention from the real issues in the case. The appellant submits that the trial judge committed two errors in arriving in the conclusion that there was no air of reality to the issues of self-defence, provocation and reduced intent.
[7] First, the appellant submits the trial judge failed to appreciate that the cuts on his hands were defensive wounds. In this regard, the appellant relies on the Crown’s expert witness, who when describing Cochrane’s wounds, testified that defensive wounds are often observed on the hands. The expert was not asked about the nature of the wounds on the appellant’s hands, and there was no evidence that every cut on the hands is a defensive wound. Consequently, we do not agree that there was on the record evidence that the cuts to the appellant's hands were defensive in nature.
[8] Second, the appellant submits that the trial judge misapprehended the probative value of the proffered evidence on the premise, wrong in law, that the defence of self-defence requires the direct testimony of the defendant to establish his state of mind.
[9] In our view, the appellant takes remarks made by the trial judge out of context. The trial judge made clear he appreciated that the state of mind of the perpetrator required for self-defence could be established by circumstantial evidence. His remarks simply indicate that he concluded that the circumstantial evidence in this case was insufficient and that direct testimony would be necessary in order to give the defence of self-defence an air of reality in this particular case.
[10] We agree with the trial judge that elements of self-defence could not reasonably be inferred from the proffered evidence of Cochrane’s propensity to attack neighbours with knives considered with the cuts to the appellant’s hands, the general state of the apartment, and the presence of knives (none of which, defence counsel at trial conceded, were referable to Cochrane).
[11] We arrive at the same conclusion in regard to the appellant’s submissions regarding provocation and/or reduced intent. The proffered evidence, taken together with the evidence in the case, was insufficient to give these issues an air of reality.
Fresh evidence application
[12] The appellant brought an application to produce fresh evidence regarding Cochrane’s conviction for manslaughter from the proceedings of his preliminary inquiry. The application must be dismissed because the fresh evidence was available at trial and, in any event, could not have affected the result.
Conclusion
[13] For these reasons the appeal is dismissed.
Robert J. Sharpe J.A.
R.G. Juriansz J.A.
D. Lane J. (ad hoc)