Laura Babcock Murder Trial 12.07.17 - Charge to the Jury - Day 1

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Code says the jury needs to decide if a witness is honest first -- and then decide whether or not their testimony is accurate, or reliable.
by Adam Carter 10:56 AM

"Remember it is not all or nothing," Code says. Evidence from a witness may relate to 10 different points. At each point, you could see truth, a lie, or an honest mistake. It's up to the jury to parse that out. It's not an all or nothing basis, Code says.
by Adam Carter 10:57 AM
 
He says its very common that a witness could be reliable on one part of evidence, and unreliable on others.
by Adam Carter 10:58 AM

Code says the jury should consider a witnesses' manner and demeanour. Was the evidence given with confidence? Was it reasonable? Did the testimony have "ring of truth?" Does the witness have any animosity or bias? Does the witness have a criminal record? Did the testimony seem reasonable or consistent? All of those things are important, he says.
by Adam Carter 11:00 AM

What's most important, he says again, is how testimony fits in with the "totality of evidence."
by Adam Carter 11:01 AM

 
Code says the demeanour of a witness is important, but shouldn't be weighted too much. "People can be nervous ... testifying is difficult," he says.
by Adam Carter 11:02 AM

"Your task is to carefully consider the evidence of each witness or each exhibit," Code says, adding they should not decide the case just by "counting witnesses or exhibits." What he means by that is just because one side calls a ton of witnesses and another doesn't, doesn't mean that the one side is any stronger in terms of argument.
by Adam Carter 11:04 AM
 
Code now talking about civility when deliberating. Says the jury should listen to each other, and debate in a thoughtful way, to use "collective wisdom."
by Adam Carter 11:05 AM

Code now moving to what he calls a "very important topic." It's assessing circumstantial evidence, and he calls this really important in this case.
by Adam Carter 11:06 AM

"It is not necessary in a criminal trial to prove fact by direct evidence. The facts may be proved by circumstantial evidence alone, or by a combination of direct and circumstantial evidence," Code says.
by Adam Carter 11:06 AM
 
He says "direct evidence is always subject to human fraility" -- ie memory, bias, prejudice, etc.
by Adam Carter 11:07 AM

Circumstantial evidence proves a fact which is not directly at issue, where you then drew an inference or conclusion flowing from that, Code says.
by Adam Carter 11:08 AM

It's kind of like, direct evidence is a = b, while circumstantial evidence is a + b, and therefore, c.
by Adam Carter 11:09 AM
 
Code explains circumstantial evidence like this: You wake up in the morning, and there's snow on your lawn. Therefore, you infer that snowed overnight.
by Adam Carter 11:10 AM

Code says that whether or not you use direct, circumstantial or a combination of both -- it has to be done while considering the "totality of evidence."
by Adam Carter 11:12 AM
 
Code says the only way to find guilty verdicts with circumstantial evidence is where it is the "only rational or logical inference or conclusion, based on the totality of the circumstantial evidence. "
by Adam Carter 11:14 AM

Inference drawing shouldn't be based on speculation, Code says.
by Adam Carter 11:15 AM

He's now moving on to talking about looking at the evidence as a whole, and not piece by piece.
by Adam Carter 11:15 AM
 
Any one piece of circumstantial evidence, standing alone, may not amount to much, Code says. "However, when a number of circumstances are put together and considered as a whole, a difference conclusion might be reached."
by Adam Carter 11:17 AM

Code uses this analogy - on a drinking and driving case. If a man stumbled getting out of a car, you likely wouldn't be able to say he was drunk. But say he also seemed confused, had an odour of alcohol on his breath, and seemed confused. On their own, they don't stand. But together, in their totality, the man appears drunk.
by Adam Carter 11:19 AM

"This case is based on circumstantial evidence," Code says. The biggest issues, he says, are whether the Crown has proved Babcock is dead, and whether or not Millard and Smich killed her.
by Adam Carter 11:21 AM
 
"These are issues that have to be proved beyond a reasonable doubt," Code says.
by Adam Carter 11:22 AM

These two elements, Code says, are what are called conduct elements. They're external, objective facts. There's no direct evidence to those two things, Code says.
by Adam Carter 11:24 AM

Code now talking about Millard and Smich's out of court statements. Saying the statements they made are only admissible against the person who made the statement.
by Adam Carter 11:25 AM
 
Code says even those statements, are not direct evidence.
by Adam Carter 11:26 AM

Code now talking about the letter Millard sent to Noudga, where Babcock "disappeared." Also talking about Smich's statements, where he allegedly told friends he "killed a girl," and the rap Smich performed the jury has seen.
by Adam Carter 11:27 AM

Code again says to not look at those statements in isolation, they must be looked at in terms of the totality of the circumstantial evidence. "None of these out of court statements of the two accused are direct evidence of the two key issues in this case," Code says. They don't assert that Babcock is dead, or that Millard and Smich killed her, he says. "They don't go that far."
by Adam Carter 11:28 AM

"They're approximate to those issues," Code says.
by Adam Carter 11:29 AM
 
In addition to those statements, there's evidence that's relevant as to whether or not the jury concludes if Babcock is dead, and the two accused caused her death, Code says.
by Adam Carter 11:30 AM

The jury also needs to consider motive, as a piece of evidence. It's relevant to murder, but not an "essential element," Code says.
by Adam Carter 11:32 AM

The jury also needs to decide whether or not Babcock was causing issues in MIllard and Noudga's relationship, Code says.
by Adam Carter 11:33 AM

He's now running through evidence of texts between Noudga and Babcock, as an overview.
by Adam Carter 11:34 AM

There's also the texts from Millard and Noudga about "hurting her" and "making her leave."
by Adam Carter 11:34 AM
 
He's also talking about texts Millard sent to Noudga about Millard, and evidence of "bad blood" between Noudga, Millard and Babcock. Code also says Millard has said his relationship with Noudga was "at times" an open one.
by Adam Carter 11:36 AM

All of these texts are out of court statements by Millard, and therefore can't be used against Smich, Code says.
by Adam Carter 11:37 AM
 
Code now talking about the "evidence relating to opportunity." Ie: Whether or not Babcock was with Millard and or Smich on the night of July 3 and into July 4.
by Adam Carter 11:38 AM

He's discussing Babcock bouncing around, looking for different places to stay, and phone records and GPS data putting Babcock and Millard's phones moving together on July 3.
by Adam Carter 11:39 AM

Smich's phone records show his phone was in the area that day/evening as well, Code says.
by Adam Carter 11:39 AM
 
Now he's moving to the evidence considering the acquisition of an incinerator and a handgun in late June, 2012. This is all an overview of previous evidence.
by Adam Carter 11:41 AM

So to clarify, this evidence is all circumstantial, but must be viewed in a totality by the jury to consider guilt or evidence.
by Adam Carter 11:42 AM

Now Code is talking about the evidence concerning Babcock's disappearance. She made her last outgoing call at 7:03 p.m. on July 3 from Millard's home, Code says. The next morning, Babcock's iPad was backed up in Millard's home office.
by Adam Carter 11:44 AM

"Her friends and family have never seen her again, never heard from her again," Code says.
by Adam Carter 11:45 AM

Next for consideration is the evidence concerning Babcock's lifestyle, the judge says. At the time she vanished, she was "leading an itinerant and unstable life in Toronto," Code says. She was working as an escort, using cocaine, was having family troubles, etc.
by Adam Carter 11:47 AM

Code says there is no evidence she changed her name, or that she unlawfully crossed into the U.S.
by Adam Carter 11:47 AM
 
Now Code is moving to the use of the incinerator to burn "something" on July 23 and 24.
by Adam Carter 11:48 AM

Code also talking about Millard and Babcock's phones were moving in tandem when it was last pinging off cell towers.
by Adam Carter 11:50 AM

Code also mentioning the photo of "an object" in a blue tarp, seen in a photo from Millard's farm.
by Adam Carter 11:50 AM
 
Also mentioning the July 4 calendar alert in Millard's phone for a "barn smell check," and the building of the trailer for the incinerator.
by Adam Carter 11:51 AM

Also mentioning Millard's phone doing a search for "what temperature is cremation done at," and his text to Smich where he says the "BBQ is ready for meat."
by Adam Carter 11:52 AM

Code now talking about the evidence from the experts about the photo with the poor resolution, that appears to show bones burning in the incinerator.
by Adam Carter 11:54 AM
 
Code now talking about how the incinerator was found on Millard's property, and five small metal grommets were found inside. Code says there's evidence that blue tarps with grommets were in use at the MillardAir hangar.
by Adam Carter 11:55 AM

Code says he's giving all these examples to show that there's a "large body of circumstantial evidence." Now he's moving on to the evidence in the alleged "post offence period."
by Adam Carter 11:57 AM

This includes the letter Millard sent to Noudga, in which he discussed what happened on the night Babcock disappeared.
by Adam Carter 11:58 AM
 
This also includes Smich's alleged statements about killing a girl, and the "ashy stone" rap.
by Adam Carter 11:58 AM

It also includes Babcock's phone being found at Smich's place.
by Adam Carter 11:59 AM

Code says circumstantial evidence is "crucial" in this case.
by Adam Carter 12:01 PM

"The case depends on circumstantial evidence on two of the main issues," Code says. Again, that's whether or not Babcock is dead, and if Millard and Smich killed her.
by Adam Carter 12:02 PM

 
Code says when assessing circumstantial evidence, the jury has to decide what primary facts have been proven, and what evidence is in question. The defence, for interest, disputes the evidence of Dr. Rogers, about the bones seen in the photo of something burning, being likely human.
by Adam Carter 12:04 PM

We're now taking the morning recess. Back in 20 mins.
by Adam Carter 12:06 PM
 
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