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EVIDENCE - Methods of proof - Circumstantial evidence - Inferences

Tuesday, November 26, 2019 @ 6:21 AM  

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Appeal by Wolff from his conviction for second degree murder. In 2008, the victim, who had once been friends with the appellant, gave a statement to the police, which led to the appellant being charged with possession for the purpose of trafficking. The victim was subpoenaed to testify as a Crown witness at the appellant’s preliminary inquiry but disappeared before the preliminary inquiry was held. The victim’s blood was found in the bathtub of his home. Bloodstains were found in other areas of the house. Two fired bullets were also found. The victim’s body was never recovered. Several witnesses testified that they saw the appellant near the victim’s home on the night before he disappeared, and others observed the appellant driving a vehicle similar to the victim’s vehicle, which was found abandoned. Schroeder testified the victim feared the appellant and told him that if something happened to him, he should tell the authorities to investigate the appellant. In 2013, Reiber, who had a criminal record and a history of drug abuse, told police the appellant admitted to her in 2008 that he had shot the victim and disposed of the body. The police obtained the appellant’s DNA, which matched DNA located on two cigarette butts and a bottle of cleaning solution found in the victim’s home during the initial investigation.

HELD: Appeal dismissed. The trial judge did not err in his assessment of the credibility of Schroeder or Reiber or the reliability of their evidence. His conclusions were reasonable and supported by the evidence. He did not place excessive reliance on Schroeder’s demeanour in assessing his evidence. He was alive to the issues that might have affected the trustworthiness of Reiber’s evidence. Even in the absence of an explicit Vetrovec instruction, the trial judge’s reasons demonstrated he subjected Reiber’s evidence to careful scrutiny. The trial judge did not err in his approach to the circumstantial evidence. He fully considered the inculpatory and exculpatory portions of the evidence and considered other possible explanations. His conclusion that other inferences that might have been drawn from the evidence were not reasonable was reasonable and based on the evidence. The trial judge’s inference that the appellant had the requisite intent for murder was reasonable and supported by the evidence. He did not err in rejecting the defence of provocation on the basis that the appellant was the armed aggressor in the confrontation. There was no air of reality to the appellant’s claim of self-defence.

R. v. Wolff, [2019] S.J. No. 409, Saskatchewan Court of Appeal, P.A. Whitmore, R. Leurer and J.D. Kalmakoff JJ.A., October 16, 2019. Digest No. TLD-November252019004