South Surrey murder appeal dismissed

The appeal of a man who was convicted of killing his common-law wife in South Surrey 7½ years ago has been dismissed.

The appeal of a man who was convicted of killing his common-law wife in South Surrey 7½ years ago has been dismissed.

B.C. Court of Appeal Chief Justice Lance Finch and Justices David Frankel and Anne MacKenzie released their decision regarding Bradley Benham’s application this morning (June 13) in Vancouver – just six weeks after the appeal was heard.

Benham is serving a life sentence with no eligibility for parole for 12 years. He was convicted of second-degree murder in November 2008, three years after 35-year-old Lisa Cubin was found dead on her living room floor the morning after a birthday party for the couple’s three-year-old daughter.

When police arrived at the murder scene, the toddler was in a nearby room watching a video with Benham, the court heard.

Autopsy confirmed Cubin had been strangled.

Convicted on circumstantial evidence, Benham appealed the verdict claiming the trial judge had erred on four points – by allowing into evidence statements Cubin made to people regarding the nature of their relationship; by admitting his own statement to a probation officer into evidence; in finding that Benham was the person seen leaving the house on the morning in question; and in relying on evidence that he looked angry at that time.

In written reasons for judgment, Frankel notes Benham needed to succeed on all four points to obtain a new trial.

“In light of the position taken by Mr. Benham on the evidentiary points, I need only deal with the one pertaining to the admissibility of his statement to the probation officer,” Frankel writes.

Benham had argued there was reasonable doubt that his statement regarding the incident was voluntary, as the probation officer was a person in authority.

Lisa CubinFrankel said he found “no basis on which to interfere with the trial judge’s finding that Mr. Benham’s statement was voluntary.”

Benham also alleged he had been ineffectively represented at trial.

During the appeal hearing, held over two days in April, defence counsel Richard Fowler submitted mistakes had been made by Benham’s trial lawyer, including a decision not to call Benham or his father as a witness.

There is “more than a possibility that a miscarriage of justice occurred,” Fowler said.

Crown Mary Ainslie argued that Benham was “well-defended,” and that the standard set in finding incompetence had not been met.

The justices concurred they would “not give effect to the claim of ineffective representation.”

“The first difficulty with Mr. Benham’s position is that he has failed to establish, on a balance of probabilities, that his decision not to testify was influenced by (his trial lawyer),” Frankel writes.

Benham did not challenge statements by his lawyer and his lawyer’s assistant that contradicted Benham’s claims, nor did Benham’s own affidavit disclose what evidence he would have provided that might have affected the verdict, he adds.

…it is significant, and in my view telling, that Mr. Benham has not stated directly what occurred on the night of November 11th and the morning of November 12th,” Frankel writes.

“In the end, there is nothing to support Mr. Benham’s contention that he was prejudiced by the fact that he was not called to give evidence in his own defence.”

The justices also did not agree that a failure to call Benham’s father as a witness deprived Benham of evidence that had the potential to raise a reasonable doubt.

 

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