COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Singh, 2012 ONCA 648
DATE: 20120928
DOCKET: C51870
Sharpe, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Devinder Singh
Appellant
Paul Calarco, for the appellant
Christine Bartlett-Hughes, for the respondent
Heard and released orally: September 25, 2012
On appeal from the conviction entered on June 20, 2008 and the sentence imposed on July 23, 2008 by Justice David Corbett of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of second-degree murder and sentenced to life imprisonment without parole eligibility for 11 years and five months. He appeals his conviction for murder and asks this court to order a new trial or substitute a conviction for manslaughter and impose an appropriate sentence.
[2] The deceased was the three-year-old niece of the appellant’s wife. Forensic evidence established that she died as a result of a ruptured aorta caused either by the hyperextension or hyperflexion of her back. Forensic evidence was led that indicated that significant force would be required to cause this injury. The appellant was the only adult present at the home when the child met her death. Shortly thereafter he made a statement to the police in which he denied harming the child and suggested that she met her death by drowning. The appellant’s statement to the police was strongly contradicted by the forensic evidence. It is accepted on appeal that in addition to the forensic evidence that demonstrated the appellant’s statement to be false, there was evidence, including the circumstances in which the statement was made, to demonstrate concoction.
Issues
[3] The appellant raises two issues on his appeal from conviction:
Did the trial judge err by failing to instruct the jury on the limited use the jury could make of the lies in the appellant’s statement to the police?
Did the trial judge err by admitting evidence of a prior incident when the appellant had inflicted injuries upon the deceased?
Analysis
- Did the trial judge err by failing to instruct the jury on the limited use the jury could make of the lies in the appellant’s statement to the police?
[4] The appellant submits that it was incumbent upon the trial judge to instruct the jury that it would be improper to infer from the fact that the appellant had lied in his statement to the police that he had the requisite intent for murder rather than manslaughter.
[5] We are unable to accept that submission for the following reasons.
[6] First, neither the trial Crown nor the trial judge suggested to the jury that the appellant’s statement had any bearing on the issue of intent. The trial Crown did urge the jury to find that the appellant had lied with respect to his involvement in the child’s death but that submission was limited to the issue of whether or not the appellant had caused the child’s death. The trial Crown did not ask the trial judge to instruct on post-offence conduct and the trial judge did not do so. While it is well-established that a limiting instruction should be given with respect to the use of evidence of post-offence conduct to infer the intent required for murder rather than manslaughter, we know of no authority that requires such an instruction as a matter of routine any time it is suggested that an accused person lied in an out-of-court statement.
[7] Second, we note that the appellant’s argument is very difficult to reconcile with the decision of this court in R. v. Czibulka 2011 ONCA 82. In that case, the Crown relied on a false out-of-court statement to prove identity. This court rejected the submission that the trial judge was obliged to give a limiting instruction that the false statement could not be used to infer intention. See paras. 57-58.
[8] Third, the trial judge provided the jury with a very careful – indeed a favourable – instruction as to the intention required for murder and as to the evidence the jury could use when deciding whether or not the Crown had proved an intent to commit murder. The trial judge made no reference to the appellant’s false statement nor, as indicated, did the trial Crown invite the jury to use the statement in that manner.
[9] Fourth, trial counsel did not ask for a limiting instruction along the lines advanced on appeal.
[10] In the circumstances, we see no perceptible risk that the jury could have misused the evidence that the appellant had lied in his statement to the police.
[11] Accordingly we reject this ground of appeal.
- Did the trial judge err by admitting evidence of a prior incident during which the appellant inflicted injuries upon the deceased?
[12] The Crown led evidence of prior acts of abuse directed by the appellant against the deceased. The most serious of these prior acts was evidence of an incident that allegedly occurred a month or two before the death in which the appellant had dragged the deceased by the heels down a set of stairs, thrown her against a wall and kicked her. The appellant urged the trial judge to rule that this evidence was unduly prejudicial and that it should therefore be excluded. The trial judge ruled that the evidence was admissible on the grounds that it was part of the narrative of events, that it was relevant to show motive and animus, and that it was relevant to the issue of intent. As there was forensic evidence to indicate that the deceased had suffered a back injury that made her more susceptible to the injury that caused her death, evidence that the appellant may have been aware that she had suffered a back injury was directly relevant. The trial judge gave a limiting instruction directing the jury that it was not entitled to use this evidence as indicating a general propensity on the part of the appellant.
[13] We see no error on the part of the trial judge in admitting this evidence. In our view, it was directly relevant to the offence charged. This evidence had significant probative value as to the appellant’s animus and his willingness to inflict violence upon this unfortunate child. The jury was given an appropriate caution against misusing the evidence. In our view, any potential prejudice arising from this evidence was clearly outweighed by its probative value.
[14] We reject the submission that because the Crown had other evidence of prior acts directed against the deceased it did not need this evidence. The Crown is entitled to lead all relevant evidence provided its probative value exceeds its prejudicial effect.
[15] Accordingly, we reject this ground of appeal.
Sentence for manslaughter
[16] As we reject the submission that the murder conviction should be set aside and a conviction for manslaughter substituted, it is not necessary for us to address the submissions made by the appellant as to the appropriate sentence for manslaughter.
[17] Accordingly, the appeal is dismissed.
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”
“Gloria J. Epstein J.A. ”