Ontario Criminal


No evidence to support finding that witness involved in murder

Appeal by accused from his conviction for murdering his wife. Identity was central issue at trial for whoever killed victim was guilty of murder. Crown’s case was circumstantial. Accused testified and he denied that he had anything to do with wife’s death. Primary ground of appeal arose out of trial judge’s refusal to allow accused’s counsel to put to accused, on his re-examination, extract from statement that accused gave to police. Counsel had resisted admissibility of that statement and any evidence derived from it throughout trial, which included accused’s cross-examination. After cross-examination was over counsel changed his position and he argued that extract was admissible. Judge held that statement was neither consistent with accused’s trial testimony, nor properly offered to rebut allegation of recent fabrication. Other ground of appeal arose from evidence of Crown witness. Witness was co-worker of accused and his wife and he had affair with wife at time of her death. Accused claimed judge wrongly instructed jury that there was no evidence that witness was involved in murder and she improperly prohibited cross-examination of witness to show his possible connection to homicide. Appeal dismissed. There was no allegation of recent fabrication explicit or implicit in cross-examination of accused so as to permit counsel to adduce prior consistent statement on re-examination. Trial record did not support admissibility of statement. Other ground was rejected for there was no evidence that could support finding that witness was involved in murder. Judge did not improperly prohibit cross-examination of witness but she properly took steps to prevent jury from speculating about witness’s possible involvement in murder.

R. v. Kailayapillai

(Apr. 22, 2013, Ont. C.A., Doherty J.A., Alexandra Hoy J.A., and S.E. Pepall J.A., File No. CA C51102) 106 W.C.B. (2d) 270.

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