Crown failed to disclose evidence in murder trial

Medical records of man’s mom used by surprise in questioning causing court to rule for retrial

A man convicted of murdering and dismembering his ex-girlfriend has been granted a new trial by the Ontario Court of Appeal due to the Crown’s failure to disclose relevant evidence to the defence until partway through the accused man’s cross-examination.

In 2014, a jury found Chun Qi Jiang guilty of second-degree murder for killing Guang Hua Liu in the basement of his Scarborough home on Aug. 10, 2012.

In sentencing Jiang to a life term with no chance of parole for 18 years, Superior Court Justice Gisele Miller said Jiang killed Liu after she told him she was leaving him and reconciling with her new boyfriend.

At trial, Jiang testified in his defence it was his mother who killed 41-year-old Liu.

He said he helped clean up the home and disposed of Liu’s body by dismembering and scattering her remains around the GTA in order to protect his 66-year-old mother, Fen Gen Zhang, who died from a sudden cardiac arrhythmia several weeks after Liu was killed.

Jiang had not previously described his mother’s involvement.

A central issue at trial was Zhang’s health, and whether she was physically capable of fatally stabbing Liu.

However, the Crown failed to disclose to the defence records concerning Zhang’s health that they obtained during the trial until Jiang was being crossexamined, which left him “stumbling in front of the jury,” the Court of Appeal found.

The Crown attempted to use the mother’s medical records, including that she had had a stress echocardiogram, to suggest Jiang was aware his mother was too ill to have killed Liu and that Jiang was not credible — but this mischaracterized the evidence, the court found.

“Contrary to what was suggested in cross-examination, the mother did not die of a heart attack but of a sudden cardiac arrhythmia which might not have earlier interfered with her ability to carry out normal physical activities,” according to the Court of Appeal decision.

Had the defence lawyer, Kathryn Wells, been made aware of the medical records, she would likely have asked Jiang more questions about his mother’s health in examination-in-chief, the decision states. It was also not disclosed to the defence that the mother’s family doctor had told the officer in charge of the case that the mother had been relatively healthy but had medical issues pertaining to her heart and anxiety about her relocation to Canada.

The Court of Appeal concluded that, given medical evidence and Jiang ’s testimony his mother disliked Liu and thought she was a thief, the trial may have been affected.

“We are very pleased with the decision,” said Delmar Doucette, who represented Jiang on the appeal along with Andrew Furgiuele and Zahra Shariff. “I think that the first trial was quite unfair and ended up being trial by ambush. We are glad that the Court of Appeal also saw it that way.”

During the cross-examination, Crown prosecutor Brian McGuire asked Jiang: “Based on your mother’s medical records, sir. I’m going to suggest to you — well based on her postmortem she died of a massive heart attack with 90 per cent of her coronary artery blocked, are you aware of that?”

Jiang replied through a translator that he had not heard of that. McGuire went on to ask Jiang about an echocardiogram test conducted by his mother’s family doctor on her heart. Wells, the defence lawyer, objected and said it appeared the Crown had medical records that had not been disclosed to the defence.

Miller, the trial judge, heard a mistrial application brought by Wells, and found serious breaches of Jiang’s right to disclosure and prejudice from the defence being unable to address the records in examination-in-chief.

Miller denied the mistrial application, saying she expected a forensic pathologist would testify the mother may well have been capable of inflicting the injuries sustained by the victim.

Ultimately the pathologist changed his evidence before the jury to say that it was beyond his competence as a forensic pathologist to express an opinion about the mother’s physical abilities, the Court of Appeal decision noted.

McGuire did concede in his closing address that the mother could have been physically capable of killing Liu, the Crown argued on appeal.

He told the jury: “This woman had health issues, full stop. It was led before you just so you would have a complete picture, so you would not be under any illusions as to what her state of health was. You’ve heard that evidence, you decide. I submit it’s a relevant factor and that’s for you to decide.”

The Court of Appeal disagreed that this was a concession by the Crown that the mother was capable of murder. “Rather, the Crown was attempting to make a virtue of its tardy disclosure of the records,” the decision said.

The Crown will now determine whether or not to proceed with another trial on a charge of second-degree murder.