



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Tammie,









2004 BCCA
            18




Date: 20040115





Docket: CA028666

Between:

Regina

Respondent

And

Aaron Bradley
      Tammie

Appellant












Before:



The Honourable
            Chief Justice Finch





The Honourable
            Mr. Justice Mackenzie





The Honourable
            Mr. Justice Lowry









S. Goldberg



Counsel for the Appellant





J.M. Gordon
            and B. McLean



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





December 4, 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





January 15, 2004









Written
              Reasons by
:





The Honourable
            Mr. Justice Mackenzie





Concurred
              in by:





The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Lowry





Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

Overview

[1]

At
        the conclusion of the hearing we dismissed the appellants appeal from
        his conviction for first degree murder with reasons to follow.  These
      are the reasons.

[2]

The
        appellant was convicted of the first degree murder of Patricia MacPherson
        for the second time on 7 June 2001.  He was first charged on 9 December
        1988, shortly after the nude body of Ms. MacPherson was found in a swampy
        area adjacent to the Newton Inn in Surrey, B.C.  The first eight-day trial
        resulted in a conviction for first degree murder on 1 March 1990.  At that
        trial, the appellant admitted that he had killed Ms. MacPherson.  His
      unsuccessful defence was intoxication and lack of intent.

[3]

No
        appeal was taken from that conviction until 1999 when an extension of
      time to appeal was granted on the ground that the appellants former counsel
        had not acted on instructions to launch a timely appeal.  On 19 October
        1999, this Court allowed the appeal and directed a new trial on the ground
        that the charge to the jury on the issue of intention failed to meet
        the standard stated in
R. v. Seymour
, [1996] 2 S.C.R. 252,
        106 C.C.C. (3d) 520.  The retrial commenced on 29 May 2000 and resulted in
        a second jury guilty verdict of first degree murder on 7 June 2001.  The
        retrial involved approximately three months of hearing days in
voir
      dires,
followed by another three months of evidence with the jury.

[4]

After
        the verdict, the appellant applied for a stay of proceedings which was
      dismissed by the trial judge on 28 June 2001.  This appeal followed.

[5]

The
        appellant did not testify before the jury at his second trial, although
        on a
voir dire
he confirmed his admission and evidence at the
        first trial that he had killed Ms. MacPherson.  The defence was successful
        in excluding the appellants confession to police, which had been admitted
        at the first trial, on the ground that it was involuntary and obtained
        in breach of the appellants
Charter
rights.   Hair samples
        obtained from the appellant, and opinion evidence related to those samples,
        was also excluded.  This opened the door to the defence strategy to raise
        doubt that the Crowns case was sufficient to prove the appellants link
      to the homicide.

[6]

The
        appellant raised numerous issues on this appeal which are addressed under
      the various headings below.

The verdict

[7]

The
        appellant submits that the jury rendered an inconsistent verdict.  The
        issue arises from the manner in which the verdict was received and recorded
      in the transcript as follows:

THE REGISTRAR:    Members
      of the jury, have you reached a verdict?

MR. FOREMAN:      Yes.

THE REGISTRAR:    Mr
        Foreman, do you find the accused Aaron Bradley Tammie, as to the charge
      of first degree murder, guilty or not guilty?

MR. FOREMAN:      Guilty.

THE REGISTRAR:    As
        to the lesser included charge of second degree murder, guilty or not
      guilty?

MR. FOREMAN:      Not
      guilty.

THE REGISTRAR:    As
      to the lesser included charge of manslaughter, guilty or not guilty?

MR. FOREMAN:      Not guilty.

[8]

No
        issue was raised immediately with the manner in which the verdict was
      taken and the jury was discharged.  The issue was raised later by Mr. Goldberg
      and the trial judge characterized it as:

. . . an accidental clerical error in the taking of the verdict.  Madam
        Registrar and the court received the verdict of guilty to first degree
        murder from the foreman.  That was the verdict of the jury.  She ought
        to have stopped reading there, but accidentally went on to ask about second
        degree murder and manslaughter.  I didnt say anything at that point, because
        I was of the view at that point that anything that happened after the guilty
        verdict to first degree murder was a nullity and redundant and I knew there
        was no confusion on the first question about the charge, because the verdict
        was clear and complete and everyone understood it to be so.  The jury
        was clearly instructed five or six times in the charge that they must
        find
        all the essential ingredients of second degree murder proved beyond a
        reasonable doubt and then, in addition, certain additional ingredients
        in order to
        find the accused guilty of first degree murder, so the only recorded
      verdict will be guilty to first degree murder.

[9]

It
        is common ground that having received the verdict of guilty of first degree
        murder, the registrar should have stopped there and not proceeded with
        the questions as to the lesser included offences of second degree murder
      and manslaughter.

[10]

In
        my view, the trial judge was correct in her characterization of the answers
        to the questions related to the lesser included charges as redundant
      and not an indication of any confusion in the minds of the jury.  I agree with
        her assessment that from the jurys point of view the verdict was entirely
        consistent.  Their verdict of guilty of first degree murder precluded a
        verdict of guilty of the lesser included offences.  Any other verdict on
        those offences would be logically inconsistent.  I would not give effect
      to this ground of appeal.

The expert evidence issues

[11]

These
        issues surround the expert evidence of a forensic pathologist, Dr. James
        Ferris, and a hair and fibre analysis expert, Staff Sergeant B.J. Wladichuk.  The
        appellant contended that the hair and fibre opinion evidence should have
        been excluded.  The appellant also submits that the trial judge unfairly
        restricted the ability of defence counsel to establish through cross-examination
        that the evidence of these witnesses was biased in favour of the Crown.  The
        appellant also contended that the charge to the jury failed to adequately
      warn the jury of the frailties of scientific evidence.

[12]

Dr.
        Ferriss opinion that the cause of death was strangulation was not in
      dispute.  The
        contentious part of his evidence related to a liver laceration on the victims
        body.  At the first trial he concluded that the laceration probably was
        caused shortly before death.  He changed his opinion and concluded it was
        probably post-mortem at the retrial, based on his experience in the intervening
        years.  The pathologist called by the defence was unable to come to any
        firm conclusion one way or the other.  The liver laceration was not a
        contributing cause of the victims death and the opinions with respect
        to the timing
      of its cause were not central issues.

[13]

The
        evidence of Staff Sergeant Wladichuk was that hair samples found on the
        bedding in the appellants room at the Newton Inn were microscopically
        consistent with the hair of the victim.  He also concluded that acrylic
        fibres removed from the victims torn jeans as well as fibres from a top
        and sweater seized from the appellants residence were indistinguishable
        from fibres used in the blanket.  He cautioned that hair and fibre comparisons
      were not a positive means of identification.

[14]

Staff
        Sergeant Wladichuk had been an expert in the comparison and identification
        of human hair and textile fibres during the initial investigation and at
        the time of the first trial. He testified that DNA analysis had supplanted
        hair and fibre analysis in the early 1990s and as the emphasis shifted
        he had not kept up with the literature in the area of hair and fibre examination
      and was not aware of current protocols.

[15]

Certain
        hair samples taken during the investigation and available at the first
        trial were subsequently lost or inadvertently destroyed.  This came to
        the attention of the defence during the cross-examination of Staff Sergeant
        Wladichuk on a
voir dire
.  Vaginal swabs containing semen taken
        from the body of the victim by Dr. Ferris were also apparently destroyed
      after analysis and the first trial.

[16]

Staff
        Sergeant Wladichuk testified that the fibre samples were destroyed in
      the course of the examination process and that the slides of the hair samples
        were apparently destroyed in an RCMP lab sometime in the years intervening
        between the two trials.  The hair samples were atrophied and lacking
      root sheath material and consequently not amenable for nuclear DNA analysis.

[17]

The
        evidence of the expert witnesses was only marginally controversial.  Much
        of Dr. Ferris's evidence was consistent with the opinions of the pathologist
        called by the defence, including the cause of death by strangulation, the
        estimated time of death, and indications that injuries to the back of the
      victim's neck were caused earlier than injuries to the front of the neck.

[18]

The
        hair and fibre analysis was candidly admitted to be of limited value.  Staff
        Sergeant Wladichuk did not dispute that forensic DNA technology had overtaken
        hair and fibre comparisons in the 11-year period between the first and
        second trials.  He said in direct examination that hair comparison is not
        a positive means of identification and he agreed that his evidence did
        not independently prove that either the appellant or the victim had been
        in hotel room 214.  While the comparison opinions were of limited weight
        I do not think that the trial judge erred on the evidence before her in
      refusing to exclude it entirely.

[19]

As
        noted, Mr. Goldberg cross-examined these two witnesses for four days
      each in an effort to show bias favouring the prosecution.  In his instructional
        textbook, An Advocacy Primer (2nd ed. 1997, p. 153), Lee Stuesser lists
        ten principles of effective cross-examination, commencing with Be Brief
        and ending with Seize the Moment.  Mr. Golbergs cross-examination flouted
        virtually all of them.  Most of the questions were on collateral matters.  Overall
        the cross-examinations were lacking in focus, repetitive, confused and
        insulting both to the witnesses and the judge.  Many questions were either
        ineptly framed or improper, and required the intervention of the trial
        judge.  In my view, the restrictions imposed by the trial judge on further
        cross-examination on collateral matters were fully justified.  Cross-examination
      is not unlimited.

[20]

The
        disclosure of lost exhibits from the first trial and Dr. Ferriss revised
        opinion were timely and did not contain any element of surprise that would
      adversely affect cross-examination.

[21]

The
        trial judge gave a standard charge to the jury with respect to the expert
        evidence including the instructions that they were not required to accept
        the opinions of the expert witnesses, that they should assess the experts
        impartiality, and that they should consider whether the loss or destruction
        of exhibits affected the Crown's case.  In my view, that instruction was
        adequate in the circumstances of this case and no further instruction was
      required.

Refusal to permit reference to
Milgaard,

Morin
and
Marshall
cases
        in cross-examination of Dr. Ferris and in closing

[22]

The
        trial judge refused to permit reference to the
Morin
,
Milgaard
and
Marshall
cases
        by defence counsel in the cross-examination of Dr. Ferris and in his
        closing address to the jury as examples of miscarriages of justice, on
        the ground
        of risking that the jury could become inflamed and misled by the references.  In
        my view, the rulings of the trial judge were not in error.  The proper
        focus of the jury, as the trial judge emphasized in her charge, was the
        evidence adduced in the courtroom and nothing else.  The possibility of
        a miscarriage of justice based on other cases risked distracting the jury
        from the proper focus on the evidence before them relating to the facts
        of the particular homicide in issue, and inciting them to decide the case
        on an improper basis extraneous to those facts.  I do not think that
      there is any merit in this ground of appeal.

Admissibility of prior statements of Crown witnesses

[23]

The
        defence submitted that the previous testimony or out of court statements
        of several witnesses should have been admitted for the truth of their
      contents under the principle of exception to the hearsay rule.  Apart from Elizabeth
        Petry, the occupant of the room next to the room rented to the appellant
        at the Newton Inn, no application was made to admit the prior statements.  The
        trial judge rejected the application with respect to Petrys statements
        on the ground that the test of necessity had not been met.  Petry was present
        in court and the trial judge concluded that the reliability of her statements
        would be best assessed on her evidence as a whole, including her cross-examination
        on any prior statements.  In my view there was no error in the trial judges
        ruling.  As the other witnesses were also in court and subject to cross-examination
        on prior statements, there was similarly no basis to admit those statements
      if there had been any application to do so.

Criminal Record Issues

[24]

The
        trial judge refused to allow counsel for the appellant to elicit from
      a police witness the fact that the appellant did not have a criminal record.  In
        my view, that ruling was correct.  A criminal record goes to credibility.
        The appellant did not testify before the jury and there was no issue
      relating to credibility to which his record could be relevant.

[25]

The
        trial judge also refused to allow counsel for the appellant to see the
        criminal file of the victims father, Archie MacPherson Sr., which was
        sealed as the subject of a pardon.  She relied on
R. v. Paterson
(1998),
        122 C.C.C. (3d) 254 (B.C.C.A.).  Counsel did not ask Mr. MacPherson Sr.
        about a criminal record in cross-examination and not having done so, I
        do not think it was open to attempt to lead evidence of his record through
        other witnesses, quite apart from the barrier presented by the pardon to
        disclosure of the record.  Accordingly there was no error in the trial
      judges ruling.

Collusion, Reputation and Propensity Issues

[26]

The
        trial judge refused to permit cross-examination of several members of
      the victims extended family with respect to propensity to violence, criminal
        activity and collusion, on the ground that the probative value of such
        evidence was outweighed by its prejudicial effect.  The appellant submitted
      that the ruling resulted in an unfair trial.

[27]

The
        trial judge allowed cross-examination of witnesses as to whether they
      had been intimidated or otherwise pressured by anyone with respect to their
        evidence.  She refused to permit cross-examination on more remote collateral
        matters and she intervened to deal with questions that were improperly
        framed, vexatious or insulting.  As noted above with respect to the cross-examination
        of expert witnesses, much of the questioning was confused and inept.  In
        my respectful view, the patience of the trial judge was sorely tried by
        Mr. Goldberg and his cross-examination was given more than ample latitude
        in the circumstances.  I do not think that there was any error in the
        limits that the learned trial judge imposed on cross-examination in the
      circumstances.

[28]

The
        trial judge also refused to receive the evidence of Kelly Corbett which
        the appellant wished to tender with respect to discussion among witnesses
        outside the courtroom during a trial lunch break.  The trial judge reviewed
        a statement of Ms. Corbetts prospective testimony and concluded that it
        was irrelevant and completely collateral to the issues before the jury.  There
      is no basis to question that ruling.

[29]

The
        trial judge also refused an application to have Shelley Taks recalled
      for further cross-examination as to whether she had been told before she
      gave
        evidence that a previous witness had been cross-examined about being
      on welfare.  She ruled it was irrelevant and collateral.  In my view, her
        ruling was within the trial judges discretion:
R. v. Pritchard
(1997),
      86 B.C.A.C. 140 (C.A.), paras. 19-20.

The Other Disputed Evidence of Shelly Taks

[30]

Shelley
        Taks saw the appellant on 9 December 1988 and observed a mark on his
      neck.  The
        trial judge refused to allow defence counsel to elicit in cross-examination
        her opinion that the mark looked like a large hickey, on the ground that
        the witness was not qualified to express that opinion.  Ms. Taks had no
        expertise that would qualify her to express an expert opinion and the jury
        had a photograph of the appellant from which they could observe the mark
        and draw their own inference.  In my view, the exclusion of this evidence
        as unqualified opinion was within the discretion of the trial judge and
      there was no reversible error.

The application for a judicial stay

[31]

After
        his conviction the appellant applied for a judicial stay of proceedings
        on the grounds of unreasonable delay within the meaning of s. 11(b) of
        the
Canadian Charter of Rights and Freedoms
, abuse of process
        based on the loss and destruction of exhibits between the first and second
        trials, and impairment of his s. 7
Charter
rights to make
        a full answer and defence based on the loss and destruction of exhibits.  The
        trial judge dismissed the application in reasons reported at [2001] B.C.J.
      No. 1949; 2001 BCSC 1219.

[32]

The
        delay between the trials was the result of the failure to appeal the
      first conviction until 1999.  The time for commencing an appeal was extended
        because of inaction on the part of the appellants former counsel.  The
        appeal was allowed because of a clarification of the law with respect
        to the proper jury instructions on the defence of intoxication, relied
        upon
      by the appellant at his first trial.

[33]

The
        delay allowed the appellant to obtain the benefit of developments in
      the law that would not have been available on a timely appeal.  As the
      trial judge noted, the loss of the hair samples and the vaginal swabs could
      not
        have raised a significant risk of a miscarriage of justice, inasmuch
      as the appellant admitted on a
voir dire
that he did have sexual
      intercourse with the victim and that he killed her.  Those admissions were not before
        the jury but in the circumstances of this case I think that the trial judge
        was entitled to consider them on the stay application.  The hair samples
        and slides were lost or destroyed some time after the appeal period from
        the first conviction had expired, apparently through inadvertence.  The
        trial judge gave considered reasons for dismissing the stay application
        and in my view there are no grounds on which this Court could disturb
      her conclusion.

Conclusion

[34]

The
      appeal was dismissed for the foregoing reasons.



The Honourable
      Mr. Justice Mackenzie

I AGREE:

The Honourable Chief Justice Finch

I AGREE:

The Honourable
      Mr. Justice Lowry


