How does a criminal prosecution go from the judge at the preliminary inquiry candidly telling the prosecutor moving for committal on a charge of first degree murder on August 10, 1992 - "there is no evidence linking this man to this crime" - to that man, Wilton Smith, ending up being found guilty of first degree murder on April 29th, 1994 by a jury of his peers ? The answer to this key question is the key to Wilton Smith's liberty. In this post I will outline some of the facts and circumstances in the prosecution of this case which lend support to a theory that police and other misconduct/negligence may have contributed to yet another innocent man being found guilty of a crime he maintains he did not commit.
The statement made by the preliminary inquiry judge - thankfully those statements are captured in the portion of the transcript that is still available is the starting point to this inquiry. This statement must have been made for a reason. I will suggest that it was made because up until that point in the preliminary inquiry there was in fact no evidence linking Wilton Smith to the crime. What the exact nature of the 'forensice evidence" is that was presented subsequent to that statement is we will never know since those transcripts were either "lost or destroyed." However, because the matter went on to trial it is safe to conclude that the evidence adduced at trial ought to have mirrored or was similar to that evidence.
Blood on clothing ?
The Crown led evidence at the trial suggesting that blood from the deceased was found on the clothing that Wilton Smith was wearing when he was arrested. Wilton Smith was photographed wearing the clothes which he was arrested in and those clothes were seized by police constable Bockus. Those photopraphs were not presented as evidence at the trial or the preliminary inquiry. Officer Bockus seized the clothing and submitted them to the Centre of Forensic Sciences for testing. If indeed photographs were taken of Mr. Smith wearing these clothes on arrest - why were these photographs not presented as evidence at trial or the preliminary inquiry ? What happened to these photographs ?
Weak linkage evidence ?
The key to both committal and conviction in this case was linkage evidence. Here a woman was found by her live-in friend who claims to have found her dead in the living room and the friend did not see or hear anything. No murder weapon was recovered either. Clearly, it is not an understatement to suggest that the evidence adduced after the preliminary inquiry judge's bold statement that there was "no evidence linking this man to this crime" was crucial to Wilton Smith both making full answer and defence at trial and in subsequently addducing evidence to show that his conviction was a miscarriage of justice.
When was the further evidence
transcripts destroyed or lost ?
The key questioon is when did the Ministry of the Attorney General lose or destroy the crucial evidence contained in the transcripts of the preliminary inquiry following the August 10th, 1992 proncouncement of "no evidence linking this man to this crime" ? I would surmise that there are two scenarios. Scenario one would be that the destruction took place pursuant to a retention policy that required them to be kept for a reasonable period of time. It would stand to reason that this reasonable period of time would not be prior to the conclusion of the trial - namely - April 29th, 1994. One good reason for this policy of keeping the preliminary transcripts available for trial is because it is often used to challenge the trial evidence. What is said at the preliminary inquiry and what is said at trial ofen differs. Did defence counsel encounter any problems securing this vital evidence ? The second scenario is that this crucial evidence was lost or destroyed prior to Wilton Smith's trial. If this is the case then it begs the question why ? The answer to this question only the custodian of these documents can answer.
The I.D. Witness Joseph Pryce:
The lawyer for the prosecution(crown attorney)led evidence from one Joseph Pryce to the effect that Mr. Pryce saw Wilton Smith come into his shop to sharpen a machete. The crucial question of when and whether in fact this witness made his observations of Wilton Smith have been the subject of prior postings on this blog. For the purpose of this posting the key point is this. Joseph Pryce did not testify at the preliminary inquiry. He could not have. He could not have have because Detective Scott Bronson testified that he only met with him on January 25th, 1993 when he attended at Mr. Pryce's place of work and showed him some photographs and Mr. Pryce picked out Wilton Smith. In addition, it appears that Mr. Pryce did not call the police to report his observations prior to their attendance at his place of work on January 25th, 1993. This conclusion is supported by the following excerpt from the trial transcript involving the prosecution lawyer - Mr. McDermott, the trial judge(Justice Ewaschuck) and defence lawyer - Karen McArthur:
Mr. McDermott: "My lord, the only - the only issue on the
other side of that though is it's quite
clear from the evidence, abundantly clear,
that Joseph Pryce didn't go to the police
with the information. The police came to
him. So that channel didn't start with
Jospeph Pryce in any way."
Justice Ewaschuck: Did you get out of him that he didn't call ?
Mr. McDermott: Yes, I said, did you have any idea that the police
were going to show up on that day or anything
about this case ? Nothing, he said, nothing.
He put it out of his mind he said.
Ms. McArthur: But what Mr. McDermott didn't lead from Mr.
Pryce is how the police did connect to Mr.
Justice Ewaschuck: Right. There is no evidence in the case as
to how the police came to know that Joseph
Pryce may have known something relevant
about this case. The only evidence is that
Detective Bronson found Joseph Pryce.
Joseph Pryce did not call the police. He
was surprised at their arrival. Is that
harmful at all ?
Ms. McArthur: I don't think it accurately reflects the
state of the facts as Mr. McDermott even
knows, my lord.
Mr. McDermott: I just as soon Ms. McArthur not impugn
anything to me in her submission, my
Justice Ewaschuck: I agree. It will go to the jury.
Later on the jury is brought in and they are told the following on this point by the trial judge:
"Three, this is your question, "if possible
how Joseph Pryce's testimony came to be found ?
Number three, this is the response - there
is no evidence in the case as to how the
police came to know that Jospeh Pryce may
have had - may have known something
relevant about the case. The only evidence
is that Detective Bronson found Joseph Pryce.
Commentary and analysis:
The evidence linking Wilton Smith to the murder of Patricia Innis is not only weak but its probative value is seriously circumspect for the following reasons:
1. Assuming Smith had blood stains linking him to the murder
on clothes seized by members of the Toronto Police Service -
why would they waite until a judge tells them there is no
evidence linking him to the murder - after the prosecution moved
for commital to put it into evidence ?
2. Where are the photos taken of Wilton Smith in the clothes he
was arrested in ?
3. When was the preliminary inquiry transcripts post August 10,
1992 lost or destroyed ?
4. Why is it that not all of the transcripts from the prelimnary
inquiry were destroyed if it was destroyed pursuant to a
retention policy ?
5. Who is this man said to be Joseph Pryce ?
6. Where is this man Joseph Pryce ?
7. How did Detective Bronson know to just attend at Pryce's
place of work one day fully armed with a photo-line-up kit ?
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the propriety of Mr. Smith's conviction for first degree murder. Anyone having any information which can shed light on the questions raised in this publication are asked to contact the writer.