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EVIDENCE - Methods of proof - Scientific evidence - DNA

Monday, August 21, 2017 @ 11:38 AM  

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Application by Tallio for an extension of time to appeal from his 1983 second degree murder conviction. Tallio pleaded guilty the murder of a 22-month-old child when he was 17 years old. The only evidence implicating him was a statement he gave to a psychiatrist. He was sentenced to life imprisonment with a ten-year minimum time of service before being eligible for parole. He maintained throughout his subsequent incarceration that he was innocent and as early as 1984 asked for help for someone to look at his case and help him. He indicated that he was informed by his Institutional Parole Officer that an unsuccessful appeal would result in a longer prison term. In 2009, the UBC Innocence Project (Project) took over Tallio’s file. The Project was able to obtain DNA evidence that had the potential to exonerate Tallio. In 2012, the Crown raised the notion of contamination of the DNA evidence. Over the next several years, further testing was conducted and information was discovered that implicated Tallio or another of his relatives in the murder, leading the Project to seek further DNA samples for testing. Its requests had yet to be complied with, the Crown taking the position that the consent of a family member of the victim was needed to release further samples of DNA obtained from the victim’s vagina. In 2016, a report was obtained, diagnosing Tallio with cognitive deficits that impacted his verbal comprehension, memory and reasoning skills. The Notice of Appeal was filed on November 30, 2016.

HELD: Application allowed. Tallio, while maintaining his innocence, did not demonstrate a bona fide intention to appeal from his conviction during the 30-day appeal period following his conviction. He only formed a bona fide intention after the Project became involved in 2009. If a new trial was ordered, the Crown would have considerable difficulty in mounting a case against Tallio 34 years after the offence. However, recent developments in the degree to which DNA testing could differentiate between male relatives meant that the DNA evidence sought had the potential to exculpate Tallio, as well as the potential to conclusively include him as the offender. This was a risk Tallio was willing to take. There was ample evidence to demonstrate that the issue of DNA testing was a viable ground of appeal. It was in the interests of justice to permit Tallio to apply for further DNA testing and to go forward with his appeal generally.

R. v. Tallio, [2017] B.C.J. No. 1347, British Columbia Court of Appeal, E.A. Bennett J.A. (In Chambers), June 30, 2017. Digest No. TLD-August212017001