Kines heading back for new murder trial: The Court of Appeal’s reasons

Manitoba’s top court issued reasons Wednesday on why it sent accused killer Jason Allen Kines back to trial on charges of first-degree murder, aggravated sexual assault and sexual interference in connection to the death of Venecia Audy, 3, in August 2006.

Justice Brian Midwinter acquitted Kines after weeks of evidence being put forward at a Dauphin jury trial earlier this year.

The Court of Appeal ruled last week that Midwinter was wrong to take the case out of the hands of the jury after ruling bite-mark evidence put forward by the Crown though a dental expert didn’t go far enough to prove Kines was the biter “beyond a reasonable doubt.”

Below are excerpts of the appeals court panel’s reasons. A new trial date for Kines is pending and he remains free on bail in Saskatoon. He is presumed innocent.

[Reasons authored by Justice Richard Chartier, on behalf of Barbara Hamilton, Marc Monnin and himself.]

“The autopsy revealed that the cause of death was multiple blunt-force trauma resulting from non-accidental trauma. The victim had a combination of lacerations, bruises and human bite marks all over her body. Her vagina had been torn and bite marks were found just above her vagina.”

“A forensic odontologist testified that [Kines] had a “very highly unusual” dentition that lined up with most of the bite marks on the body. He definitively excluded the other member of the household as being the biter for all but one bite mark. The expert testified that the accused was “most likely” the biter. He also said that he was “very confident” in his identification of the accused and explained that “probable” identification was as definite a designation as his discipline allowed, except in rare circumstances.”

Midwinter’s principal reason he took the case from jury, Chartier said,  was “his conclusion that the evidence identifying the accused as the biter did “not give rise at law to proof beyond a reasonable doubt.” Because it was only “probable,” that led him to conclude there was insufficient evidence to support a conviction.

“The judge in this case appears to have failed to differentiate the question of whether the Crown met its burden on a directed verdict test (the evidentiary burden) with whether the Crown met its burden of proof beyond a reasonable doubt (the burden of proof).”

Evidentiary Burden = determines whether an issue should be left with trier of fact. 

Burden of Proof = “determines how the issue should be decided.”

“The first is for the judge; the second is for the jury.” “Moreover, the “proof beyond a reasonable doubt standard” has no direct application on a judge’s consideration of a directed verdict motion.”

“The judge’s conflation of the evidentiary burden with the ultimate burden of proof caused him to engage, to an impermissible degree, in a weighing of the evidence, to the point of determining questions which fell within the jury’s purview. We also agree with the Crown that the judge failed to consider the circumstantial evidence in its totality. Given that we are ordering a new trial, we will simply state that there was other contextual evidence which the judge did not seem to consider. In our view, the Crown’s suggested inferences fall within a range of inferences a jury could reasonably draw. As such, there was some evidence that the person accused of the offences was the perpetrator of the offences.”

“… In the end, the judge’s conclusion that the identification evidence in this case does not meet the test on a directed verdict motion cannot be allowed to stand. Whether the evidence adduced but he Crown will ultimately be sufficient to meet the burden of proof beyond a reasonable count will be for the jury to decide.”

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