Robert Pickton's defence lawyers may share responsibility for any errors the trial judge might have made, Crown counsel at the convicted killer's appeal hearing say.
In the second day of the appeal of Mr. Pickton's conviction of second-degree murder in the deaths of six women, Crown counsel Greg Fitch told the court that the trial judge delivered the appropriate instructions to the jury.
However, if the appeal court concludes that errors were made, the court should also consider whether the Pickton defence team made a strategic decision to not push the trial judge to make the corrections that would have been required, Mr. Fitch said.
Earlier this week, Mr. Pickton launched an appeal of his conviction based solely on the instructions of the trial judge and the judge's response to a question from the jury.
The jurors had asked whether they could decide that Mr. Pickton was the killer if they inferred that he acted "indirectly." Mr. Pickton's lawyer, Gil McKinnon, told the appeal court that the trial judge responded to the question without having a clear understanding of the nature of the problem that was troubling the jury and without asking for clarifications.
Mr. Fitch said yesterday that the defence did not want the jurors' question clarified. At that time, they were responding "to an entirely favourable lay of the land," he said. He is expected to elaborate on this point when he continues today.
"It is reasonable to suppose that this was a strategic consideration, a strategic approach by defence not to seek clarification of the question," Mr. Fitch said. "Clarifying the question would only upset the favourable state of affairs that existed for the defence."
Mr. McKinnon had also urged the appeal court to consider quashing the convictions of murder on the basis that the trial judge had provided new grounds for convicting Mr. Pickton when responding to the jurors' question.
The trial judge, Mr. Justice James Williams of the B.C. Supreme Court, told the jurors before they began their deliberations that they were to decide whether Mr. Pickton was the killer.
But in response to their question on the sixth day of their deliberations, the judge replied that they could also find Mr. Pickton guilty if they decided the prosecutors had proven beyond a reasonable doubt that Mr. Pickton was "an active participant" in the killings. The jury reached a verdict 2½ days later.
Mr. Pickton's lawyers led extensive evidence during the trial of the involvement of others in the hope of planting a seed of doubt about Mr. Pickton's role as the sole perpetrator, Mr. Fitch said.
"And now on appeal [Mr. Pickton's legal team] complains on what follows from that evidence," he said, referring to the judge's instructions that enabled the jury to consider that Mr. Pickton was not the sole perpetrator.
Mr. Fitch's response is to continue today.
After a 23-month trial, Mr. Pickton was convicted on Dec. 11, 2007, of the murders of Sereena Abotsway, Mona Wilson, Andrea Joesbury, Georgina Papin, Marnie Frey and Brenda Wolfe. He remains charged with the murders of an additional 20 women.
Mr. Pickton appealed his conviction of murder, asking for a new trial. The Crown has also launched an appeal, asking for a new trial on charges of first degree murder of 26 women. A three-member panel of the B.C. Court of Appeal, which began hearing submissions Monday, is expected to continue with the case until late next week.
