





CITATION: R. v. Selvanayagam, 2011 ONCA 602



DATE: 20110921



DOCKET: C48547



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and Armstrong JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Mathiyalagan Selvanayagam



Appellant



Michael Dineen, for the appellant



Benita Wassenaar, for the respondent



Heard: February 16, 2011



On appeal from the conviction entered by Regional Senior Judge
          Edward F. Then of the Superior Court of Justice, sitting with a jury, dated
          April 1, 2006.



Feldman J.A.:





INTRODUCTION

[1]

The appellant appeals his conviction for second degree murder. DNA
          analysis of blood left at the scene not belonging to the victim was strongly
          linked to the appellant with the chance of co-incidence being one in 19
          trillion. Besides the blood evidence, the Crown also relied on four statements
          the appellant made to the police before and after he was arrested to show
          that he was lying when he said he did not go to the house where the murder
          occurred and he did not kill the victim. The appeal is based on the treatment
          of those statements by Crown counsel in his closing and by the trial judge in
          his charge to the jury.

FACTS

[2]

The appellant had been a tenant living in the basement of the home of
          the deceased and her husband and two children at 89 Deanscroft Square in
          Toronto. The family slept on the second floor. The appellant moved out in
          August, 2000, but called to collect his mail from time to time.

[3]

On December 29, 2000 at 10:35 p.m., the deceaseds husband left for
          his night shift job as an accountant at a hotel. That evening, the husband
          received a number of hang-up phone calls at work. He returned home at 7:30 a.m.
          and found his wife lying on the floor of the spare bedroom with blood all
          around. The children were asleep in another bedroom.

[4]

When he left, his wife had been wearing a green shirt and pink fleece
          pants. When he found her, she was naked but covered with a blanket from the
          waist down. The fleece pants together with her underwear turned inside out
          were found in the same room.

[5]

There was a large amount of blood on the bed and on the carpet. Small
          amounts of blood were also found on the walls of the hall between the bedroom
          and the bathroom.  More blood was in the bathroom on the toilet, the toilet
          paper, the toilet handle, on towels and on the floor. It was later determined
          that the blood belonged not only to the victim, but some of it was from the appellant.
          The deceaseds husband testified that the blood was not there when he went to
          work that evening and that they cleaned the house every other day.

[6]

The police found letters addressed to the appellant and to another
          tenant downstairs in the home. They examined the basement room where the
          appellant had stayed when he lived there. There was a broken window covered
          by a piece of drywall and a thumbtack. There was dust and cobwebs on the
          windowsill. Two fingerprints belonging to the appellant were found on the
          outside of that window. There were also two sets of footprints in the snow,
          one that led to the side of the house and one to the shed.

[7]

The deceased was killed by 48 stab wounds from a knife or blade. The
          wounds were all over her body including many defensive wounds on her arms and
          hands. There was no evidence of any sexual encounter.

[8]

DNA testing on the various blood stains found DNA consistent with the
          appellants DNA. The consistency was found at 9 loci, which meant the match
          was very strong. The expert evidence was that the chance that the blood found
          was also consistent with a randomly selected person was one in 19 trillion.

[9]

The police interviewed the appellant on four occasions after the
          murder, the last one following his arrest. The first interview was on January
          6, 2001, one week after the murder, once the police learned that the
          appellant had previously been a tenant in the deceaseds home. The appellant
          came to the door lightly dressed, giving the police the opportunity to look
          for any cuts or other injuries to his body; they saw none.

[10]

He told the police on that occasion that he knew of no one who would
          have wanted to hurt the deceased, that he had placed the drywall in the
          basement window to block out the light, and that he would have left his
          fingerprints on the window when he cleaned it on occasion. He reported that
          his relationship with the family was fine and that the husband would sometimes
          help him fill out forms. He said that he used the basement and kitchen of the
          home.

[11]

He said that on the night of the murder at 9:30 p.m. he went to Denisons
          pub where he had formerly been employed, met friends and stayed until 1:30 a.m.
          He went home by subway, bus, then taxi, and arrived at around 3:00 a.m. He
          told the police that he had not been to the 89 Deanscroft Square address for
          about two months, but that since he moved out, he had gone back to pick up
          his mail two or three times, always calling first. He was asked if he had any
          more information, and did not mention that he had called the deceased the
          afternoon before the murder.

[12]

The police came to interview the appellant a second time on January
          19, 2001 after they had examined the deceaseds call display and found a call
          from the appellant at 5:47 p.m. the afternoon before the evening of the
          murder. The officer described the appellant as co-operative. When asked, the appellant
          acknowledged the call. He told the police that the deceaseds daughter had
          answered and passed the phone to the deceased. He said that he asked her if
          there was any mail for him and if he could come on Saturday to retrieve it.
          She told him that there was mail and that he could pick it up only Saturday
          morning because she was having a party. He told her he would call the next
          day to arrange another time.

[13]

The third time the police came was several months later on December
          14, 2001 to obtain a DNA sample, which the appellant agreed to give. He was
          again polite and co-operative.

[14]

The appellant was arrested for first degree murder over one year later
          on February 6, 2003 after the DNA testing of the blood identified him. He was
          interviewed at that time and gave a cautioned statement. In that statement,
          he denied killing the deceased. He said when he lived at 89 Deanscroft, he
          never went to the second floor. He could not explain the presence of his
          blood at several locations at the murder scene. He denied calling the
          deceased the day before the murder to ask about his mail and said he did not
          remember what he had told the police about that in his January 19, 2001
          interview. He also said he was not close with the deceaseds family and that
          when he lived there, he spent most of his time in his room.

[15]

The trial began in February, 2006. The Crown led the appellants
          statements as part of its case.

[16]

The appellant testified in his defence. His testimony was essentially
          exculpatory but there were some possible inconsistencies with previous
          statements. For example, he described a much closer relationship with the
          family of the deceased than he had previously acknowledged. He explained that
          he had earlier said he spent most of his time in his room because their
          schedules often did not overlap.

[17]

Another discrepancy that the Crown focused on was the phone call. The
          appellant acknowledged the phone call regarding his mail. He said he had
          forgotten it when he was arrested in February, 2003, but he had told the
          police about it on January 19, 2001 when they asked him about it. In cross-examination
          his explanation for not remembering or acknowledging the call after his
          arrest was that once he was implicated, he denied the call.

[18]

The third issue that the Crown pursued was the appellants story as to
          whether he had ever been on the second floor of the house. The appellant said
          he had gone there sometimes to wake the husband if there was a visitor and on
          two or three occasions when the husband, who was an accountant, had helped
          him with his taxes. He had never gone into the second-floor bathroom.
          Regarding his denial in his post-arrest statement that hed ever been to the
          second floor, the appellant explained that he was afraid, that he did not
          think it related to the murder and did not understand the issue at the time.
          He said he denied being up there because he had nothing to do with the
          incident.

[19]

The appellant was charged with first degree murder while committing a
          sexual assault. Although there was no forensic evidence of a sexual assault,
          the Crowns theory was that the appellants motive was sexual assault, and
          that his DNA identified him as the murderer. He had first attempted to enter
          by the basement window, then came to the front door on the pretext of picking
          up his mail. Besides the DNA evidence, the Crown also relied on the contradictions
          in the appellants statements and testimony, which both undermined the
          credibility of his denial and amounted to lies that were evidence of his
          guilt.

[20]

The defence position was that another person had entered to steal
          jewellery and when he was confronted by the deceased, he killed her. The
          appellant questioned the conclusiveness of the DNA evidence and pointed to his
          co-operation with the police as evidence of consciousness of innocence.

ISSUES ON THE APPEAL

[21]

The appellant was convicted of second degree murder, the jury having
          found that the Crown did not prove a sexual assault beyond a reasonable
          doubt.

[22]

The appellant raises two issues, both alleging errors by the trial
          judge in relation to the proper use the jury was entitled to make of his pre-trial
          statements: (1) the trial judge failed to give the jury an 
OConnor
instruction explaining that mere disbelief of an accuseds exculpatory
          statements could not be used by the jury as evidence of guilt unless there was
          independent evidence that the accused had fabricated his statements; and (2)
          the trial judge incorrectly told the jury that the appellants prior
          inconsistent exculpatory statements were not evidence unless he had adopted them
          in his trial testimony. He used as examples the exculpatory statements that the
          appellant never went to the second floor of the deceaseds house and that he
          did not make the phone call to the deceased.

[23]

The appellant submits that the jury would have been looking for
          evidence beyond the DNA identification in order to convict. Because of these
          errors, if the jury disbelieved his exculpatory statements and denial of
          guilt, they may have used that disbelief as evidence against him. Also, he
          submits, the trial judge improperly removed from their consideration, as
          evidence in his favour if they believed it, the exculpatory statements he
          made pre-trial.

[24]

Therefore, he submits, the cumulative effect of the errors requires
          the court to order a new trial.

Issue 1  Failure to Give an
OConnor
Instruction

[25]

Part of the position of the Crown was that the appellants lies
          amounted to after-the-fact conduct indicating consciousness of guilt. In
          pre-charge discussions, the issue of instructing the jury on the law
          regarding after-the-fact conduct indicating consciousness of guilt and
          consciousness of innocence was discussed. Defence counsel asked the trial
          judge to instruct the jury that the appellants co-operation with the police
          in his statements and in voluntarily giving his DNA indicated consciousness
          of innocence.

[26]

Ultimately, the trial judge decided that the fairest approach would be
          not to give an after-the-fact conduct charge either way, but he outlined for
          the jury the positions of the Crown and defence on the issue. Defence counsel
          did make an objection to the charge based on the failure to give an
OConnor
instruction that the jury could not use the appellants lies, if they found
          them to be so, as positive evidence of guilt unless they were satisfied that
          he had fabricated his statements. See
R v. OConnor
(2002), 62 O.R.
          (3d) 263 (C.A.), at paras. 36-38.

[27]

The law, briefly stated, is that the trier of fact may not treat a
          disbelieved exculpatory statement as positive evidence of guilt unless there
          is evidence, independent of the fact of falsity itself, that the statement
          was concocted or deliberately fabricated. The rationale for the rule was
          explained by Doherty J.A. in
R. v. Coutts
(1998), 40 O.R. (3d) 198
          (C.A.), at p. 203 as follows:

If triers of fact were routinely told that they
          could infer concoction from disbelief and use that finding of concoction as
          evidence of guilt, it would be far too easy to equate disbelief of an
          accused's version of events with guilt and to proceed automatically from
          disbelief of an accused to a guilty verdict. That line of reasoning ignores
          the Crown's obligation to prove an accuseds guilt beyond reasonable doubt.
          By limiting resort to concoction as a separate piece of circumstantial
          evidence to situations where there is evidence of concoction apart from
          evidence which contradicts or discredits the version of events advanced by
          the accused, the law seeks to avoid convictions founded ultimately on the
          disbelief of the accuseds version of events. [References omitted.]

[28]

Procedurally, where the Crown wishes to have the jury draw the
          inference of guilt from an accuseds statements, then at the admissibility
          stage it must show the court sufficient evidence of concoction that is
          independent of the falsity of the statement, to demonstrate fabrication. See
R.
          v. Hall
, 2010 ONCA 724, at para. 164. Otherwise, the Crown is limited to
          putting the statements to the accused in cross-examination, if the accused
          testifies at the trial. That procedure was not followed in this case before
          the Crown was allowed to lead the statements in evidence as part of its case.
          However, the accused testified in his own defence, so that the statements
          were also put to him in cross-examination.

[29]

In his charge, the trial judge instructed the jury to consider the appellants
          contradictions in the context of assessing his credibility only, rather than
          as evidence of consciousness of guilt. He gave a
W.(D.)
charge
          instructing the jury that even if they disbelieved the appellant, they had to
          look to the other evidence to determine whether the Crown had met its burden
          of proof of guilt beyond a reasonable doubt. See
R. v. W.(D.)
, [1991]
          1 S.C.R. 742, at p. 758.

[30]

The trial judge did not give an
OConnor
charge that would have
          told the jury that they could not use disbelief of the accused as evidence of
          guilt unless they found independent evidence that he had fabricated his
          statements. In
R. v. Polimac
(2010), 254 C.C.C. (3d) 359 (Ont. C.A.)
          where this same issue arose, Doherty J.A. observed at para 106:

The trial judge could have given an instruction
          following the
OConnor
model.
The question on appeal, however, is
          not whether an OConnor instruction would have been appropriate, but whether
          the instruction given prejudiced the appellants right to a fair trial.
I
          do not think it did. [Emphasis added.]

[31]

As was the case in
Polimac
, I think the trial judges decision
          not to give the
OConnor
instruction in this case was a fair one. As
          in
Polimac
, there was evidence that was independent of the falsity of
          the impugned statements that the jury could have considered on the issue of
          concoction, had they been so instructed.

[32]

The appellant admitted that he lied to the police in his post-arrest
          statement when he told them he had never been on the second floor of the
          deceaseds house. His explanation for that lie was basically that once the
          police told him the murder had occurred on the second floor, he did not
          equate his going to the second floor at another time as related to the
          incident or the question they were asking. If the jury rejected that
          explanation, they could conclude that he had fabricated that answer to
          distance himself from the murder. The same analysis could apply regarding the
          appellants failure to acknowledge his phone call to the deceased on the
          afternoon before the murder. Although he admitted he made the call when the
          police confronted him with the phone records on January 19, 2001, he denied
          it in his post-arrest statement in February, 2003. His explanation was that
          at that time he denied it because the police were then implicating him in the
          murder. Again, if the jury rejected that explanation and concluded that the
          appellant had fabricated his denial, they would have been entitled to treat
          his false statements as consciousness of guilt evidence.

[33]

Because this evidence of possible concoction existed, it would not
          have helped the appellant to have it outlined to the jury by the trial judge.
          As Doherty J.A. found in
Polimac
, such an instruction would have
          called to the jurys attention the evidence of concoction, and the conclusion
          that it constituted evidence of consciousness of guilt. Instead, the jury was
          encouraged to consider the appellants evidence in the context of a
          credibility analysis, and in accordance with
W.(D.)
, if they rejected
          the appellants denial of guilt on that basis, they were told that they still
          had to evaluate the evidence of guilt presented by the Crown, and determine,
          based on that evidence, whether the Crown had proved its case beyond a
          reasonable doubt. As a result, I do not view the decision not to give an
OConnor
instruction as an error in all the circumstances of this case. Had this been
          a case where there was no evidence of concoction or fabrication of an alibi
          or exculpatory statement by an accused, the
OConnor
charge would have
          been necessary to warn the jury that they could not use mere disbelief of an
          accused as positive evidence of guilt or of consciousness of guilt.

[34]

As part of this first

objection, the appellant also submits
          that the trial judge should have specifically pointed out to the jury that
          for some of the statements, no Tamil interpreter was provided and this may
          have affected the appellants understanding and his responses. Although such
          a reminder could have been given, no objection was made to the charge on that
          basis, although many objections were raised by trial counsel. The failure to
          object can be taken as an indication that defence counsel did not consider
          this to be an important omission at the time.

Issue 2: Prior Inconsistent Statements by the Appellant

[35]

I agree with the appellant that the trial judge made an error of law
          when he told the jury that the rule regarding the evidentiary value of prior
          inconsistent statements applies to an accused who testifies.

In
          error, the trial judge

told the jury that they could not use as
          evidence a prior exculpatory statement made by the appellant if he did not
          adopt
it in his court testimony.


[36]

He then gave two examples. The first was in the February 6, 2003 post-arrest
          statement where the appellant said he had never been on the second floor of
          the 89 Deanscroft house, then acknowledged in his trial testimony that he had
          been there a number of times in the past but not in the bathroom. The trial
          judge told the jury that because the appellant had repudiated his February,
          2003 statement and not adopted it at trial, they could not use that statement
          as proof that he had never gone to the second floor of the home. However,
          they could use the inconsistency to assess the appellants credibility in his
          evidence given at the trial.

[37]

The second example was from the same statement where the appellant
          said he did not remember making the telephone call to the deceased regarding
          the mail on December 29, 2000, but at trial he said he did make the phone
          call. The trial judge told the jury that because the appellant did not adopt
          his previous statement, they could not use that statement as proof that that
          he did not make the call, but again, they could use the inconsistency to
          assess the appellants credibility at trial.

[38]

An accuseds out-of-court-statements constitute evidence both for and
          against that accused: S. Casey Hill
et al.
,
McWilliams Canadian
          Criminal Evidence
, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book,
          2003) at para. 7:160.10: see
Polimac
at para. 85. The issue of the
          use that can be made of an accuseds statements that contain both inculpatory
          and exculpatory elements was recently discussed by the Supreme Court of
          Canada in
R. v. Rojas
, [2008] 3 S.C.R. 111. The court there confirmed
          that the Crown cannot tender only the inculpatory portion of an accuseds
          out-of-court statement that also contains exculpatory portions, and that the
          exculpatory portion is also substantively admissible in favour of the
          accused. (para 37)

[39]

Therefore, in theory, the jury could have ignored the appellants
          evidence at trial, although it was corroborated by the phone record in the
          case of the phone call and by the deceaseds husband in the case of the
          appellant having been on the second floor a number of times, and accepted the
          appellants earlier exculpatory statements to the contrary.

[40]

However, in my view, that was merely a theoretical possibility given
          the appellants trial testimony and the corroboration referred to.
          Furthermore, the DNA evidence, if accepted, clearly showed that the appellant
          had been to the second floor of the home and left his blood, and the phone
          record showed that the phone call was made from his phone. Therefore,
          although an error was made, it could have had no practical effect.

[41]

On the other hand, the two examples of prior inconsistent statements
          used by the trial judge as illustrations of exculpatory evidence the jury
          could not use, but of contradictions that they could use, could have had some
          prejudicial effect. Trial counsel made a specific objection to this portion
          of the charge. These two examples underscored to the jury the appellants
          credibility problems and may thereby have caused some prejudice to the
          appellant.

Application of the Proviso

[42]

In the circumstances, Crown counsel on the appeal submits that to the extent
          an error of law was made, this is a proper case for the application of the
          proviso provided by s. 686(1)(
b
)(iii) of the
Code
, on the basis
          that no substantial wrong or miscarriage of justice has occurred.

[43]

This was an overwhelming case based on the DNA evidence from the blood
          that the appellant left both in the room where the deceased was killed and in
          the bathroom, where the killer apparently attempted to clean up. The
          appellant also had a connection to the house and the family and had
          telephoned the home hours before the murder.

[44]

The acquittal by the jury on the first degree murder charge, rejecting
          the allegation of sexual assault, showed that the jury was not overwhelmed by
          any credibility problems the appellant may have had, but looked for positive
          evidence of the elements of each charge to substantiate a conviction.

[45]

I would therefore apply the proviso and dismiss the appeal.

Signed:           K. Feldman J.A.

I agree John
    Laskin J.A.

I agree Robert
    P. Armstrong J.A.

RELEASED: JL SEPTEMBER 21, 2011


