Focus On

Procedure - Trial judge’s duties - Charge or directions - Defences - Evidence of witnesses

Thursday, November 24, 2016 @ 7:00 PM  


Appeal by the accused, Rafferty, from convictions for first degree murder, kidnapping, and sexual assault causing bodily harm. The victim, age eight, was abducted while returning from school. Her body was discovered months later under rocks in a farmer’s field. She was naked from the waist down and featured several broken ribs and skull fractures. Prior to the accused’s trial, McClintic pled guilty to first degree murder. In an agreed statement of facts, she stated that the accused sexually assaulted and killed the child. At the accused’s trial, McClintic testified that she killed the child. Defence counsel submitted that McClintic orchestrated the kidnapping and killing, and that the accused was neither a principal nor a party to the offences. The accused was convicted by a judge sitting with a jury. The accused appealed on the basis that the trial judge made multiple errors that resulted in an unfair trial.

HELD: Appeal dismissed. The trial judge was not required to instruct the jury that the accused’s post-offence conduct in covering up the killing was consistent with him being solely an accessory after the fact. There was no evidence upon which a jury acting reasonably could have convicted the accused solely of being an accessory, as the theory strained credulity and was contradicted by a large body of evidence. In addition, there was no doubt regarding the permissible uses the jury could make of the evidence regarding the accused’s post-offence removal of the backseat of his vehicle. The trial judge did not err in admitting a portion of McClintic’s statement to police for the proof of its contents. It was reasonable to conclude that the threshold reliability was established given the substantial body of confirmatory video and forensic evidence. The decision to admit a portion of the statement rather than its whole was made to avoid prejudice to the accused. No prejudice arose given the accused’s unlimited ability to cross-examine McClintic. No error arose from the failure to give a Vetrovec warning, as the warning was removed from the charge at the request of the accused’s trial counsel.