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Surrey man appeals life sentence

Bradley Benham citing ineffective assistance led to second-degree murder conviction of common-law spouse Lisa Cubin.
Signs and exterior of the Vancouver Law Courts. - stock photos

The appeal of a man serving a life sentence in connection with the November 2005 death of his common-law wife in South Surrey was heard in Vancouver last week.

As family members of victim Lisa Cubin and appellant Bradley Benham listened from the gallery, defense counsel Richard Fowler outlined his client's application to advance fresh evidence, and an "allegation of the ineffective assistance of counsel" to B.C. Court of Appeal Chief Justice Lance Finch and Justices David Frankel and Anne MacKenzie.

"The essence of the claim is trial counsel's advice to the appellant that he should not testify and no defensive evidence needed to be called… did not in the circumstances of this case meet the standard," Fowler said. "The defense position was not properly advanced."

Benham was convicted of second-degree murder in November 2008, three years after 35-year-old Cubin was found dead on her living room floor the morning following a birthday party for the couple's young daughter.

An autopsy determined Cubin had been strangled.

While the case against Benham was built entirely on circumstantial evidence, following a 19-day trial in B.C. Supreme Court, Madame Justice Barbara Fisher found "the only conclusion arising from the evidence is Mr.

Benham intended to cause Miss Cubin harm."

Thursday, Fowler described trial counsel's decision not to call Benham's father as a witness, nor Benham himself, as mistakes that led the trial judge to the only finding possible.

"At the end of the day, the only conclusion you could come to is a conviction of second-degree murder," he said.

There is "more than a possibility that a miscarriage of justice occurred."

Crown Mary Ainslie countered that the defense counsel's strategy – which included not calling Benham's father Michael as a witness after questioning him during a preliminary inquiry – was supported by his client at the time.

"We cannot second-guess counsel's decisions. We were not at the preliminary inquiry," Ainslie said. "Never did Bradley Benham say, 'call my father.'"

Defense counsel Stan Nozick had suggested during trial that Michael Benham had equal opportunity to kill Cubin, but Fisher found otherwise.

Fowler said testimony from Michael Benham heard during the preliminary inquiry included statements that could have created reasonable doubt at trial.

"In the limited toolkit we have defending people on murder cases, this is gold," Fowler told the court.

Asked if he was suggesting that calling Michael Benham to the stand would have presented a low risk of damaging the defense's case, Fowler agreed.

"This is one of those rare cases where calling a witness can't possibly make it worse," he said.

Ainslie – noting allegations of "ineffective assistance" are rarely brought forward and rarely successful – disagreed.

At the preliminary inquiry, Nozick "tried out the evidence of Michael Benham," Ainslie said.

"He came to a conclusion… this witness was not (credible)."

Ainslie noted that the junior Benham had initially faced a first-degree murder charge, but Fisher found the evidence did not support the more serious accusation; a conclusion she may not have reached had Michael Benham taken the stand.

"Mr. Benham was well-defended. He was ultimately acquitted of first-degree," Ainslie said.

"The argument before this court… (has) not met the threshold or standard that the court has set out in finding incompetence. There was a meaningful defense."

Other appeal points Fowler raised during the two-day hearing included the admission at trial of hearsay evidence regarding the nature of the relationship between Cubin and Bradley Benham; the admission of a statement Benham made to a probation officer; and "demeanour evidence" used to identify Benham as the driver of a truck seen in the area before police arrived at the scene.

Outside court, Cubin's mother, Lin, said the outcome of the appeal is irrelevant.

"It doesn't change anything," she said. "You can argue all you want. The bottom line is, Lisa's gone."

Benham's sister Michelle Chu described the whole situation as a sad one that has impacted many people.

"It's unfortunate this is happening," Chu said. "It affects everyone. It's ripped us apart, too. I miss Lisa, too."

Friday, the justices reserved decision on the appeal. Ainslie said it could be six months or longer before a ruling is made.

 



Tracy Holmes

About the Author: Tracy Holmes

Tracy Holmes has been a reporter with Peace Arch News since 1997.
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