Schuyler Francis Van Wissen v. Her Majesty the Queen
(Manitoba) (Criminal) (By Leave)
Criminal law - Trial, Jury award, Evidence, Admissibility - Criminal law — Trial — Trial fairness — Jury charge — Evidence — Admissibility — Whether the applicant was denied a fair trial and appeal due to judicial incivility and interference and the failure of the appellate judge to rescue himself — What is a proper jury charge in cases where the sole evidence is DNA — Whether the Court of Appeal erred by not finding that the trial judge erred in law when he failed to instruct the jury on the defence of alibi and when he failed to provide a W.D. instruction — What is the impact on the absence of police notes and the police failure to videotape evidence gathering interactions with accused persons in respect of police credibility, reliability and/or the ultimate admissibility of evidence obtained — Is opinion evidence by a pathologist to the effect that the absence of genital injury does not disprove the commission of a sexual assault admissible and whether a jury limiting instruction is required.
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When the victim failed to show up for work, her father went to her home and found her dead in her living room. The victim had numerous contusions, and five stab wounds, three of which were fatal. Male DNA was identified on swabs taken from the victim’s vagina and gluteal cleft. Having no suspects for the murder and anticipating that the DNA might identify the killer, the police canvassed men who knew or lived near the victim for information and DNA samples. The police received information that the applicant’s father lived near the victim’s home and that he had lived with him “off and on”. The police spoke with the applicant and requested a sample of his DNA, which he provided. The applicant’s DNA matched the DNA found on the victim’s body that was tested, as well as the wrist bindings. A DNA expert testified at the trial that the applicant’s DNA profile matched the DNA found on the swabs taken from the interior of the victim’s vagina and her gluteal cleft and from the three locations on the wrist bindings. After a trial by judge and jury, the applicant was convicted of first degree murder. The applicant’s motion for recusal was dismissed. The Court of Appeal dismissed the conviction appeal.
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