


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 appellants 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 appellants 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 appellants 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:

1.  Did the trial judge err by failing to instruct the jury on the limited
    use the jury could make of the lies in the appellants statement to the police?

2.  Did the trial judge err by admitting evidence of a prior incident when
    the appellant had inflicted injuries upon the deceased?

Analysis

1.  Did the trial judge err by failing
    to instruct the jury on the limited use the jury could make of the lies in the
    appellants 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 appellants 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 childs death but that submission was limited to the
    issue of whether or not the appellant had caused the childs 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 appellants 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
    appellants 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.

2.  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 appellants 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. 


