Use 'common sense' when weighing evidence in Robert Badgerow murder trial, judge tells jury

Alternate suspects, consensual sex in a car, the identity of the 911 caller – these theories in the first-degree murder trial of Robert Badgerow do not have to be proven, Justice Patrick Flynn said as he began his charge to the jury Thursday in a Kitchener courtroom.

Rather, the jury has one goal: To determine whether Badgerow was responsible for the death of Diane Werendowicz in June 1981.

"Each of you has to decide the case for yourself," Flynn said, noting the Crown has the burden to prove Badgerow is guilty - Badgerow does not have to prove his innocence.

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This is the fourth time Badgerow has been tried for first-degree murder in the death of 23-year-old nursing assistant Werendowicz. The decision in his first trial was appealed, and two subsequent trials ended with hung juries.

Werendowicz's body was discovered June 20, 1981, face down in a creek at the bottom of a ravine in Hamilton. The Crown alleges she was raped and killed – strangled with her purse strap – by Badgerow.

Badgerow's lawyers have argued their client and Werendowicz met outside the bar Malarky's on June 19, 1981, sat in his car, smoked a joint and ended up having consensual sex in the back seat. But, they said, Badgerow did not kill Werendowicz.

Different versions of events

The defence has suggested another person may have been responsible for Werendowicz's death – that as she walked home after her encounter with Badgerow, a man named Brian Miller attacked and killed her. Miller is a convicted sex offender – although he wasn't at the time of Werendowicz's death – and was initially a suspect in the case.

The fact that Badgerow's DNA was found inside Werendowicz's body is an agreed upon fact, Flynn noted.

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The Crown has said a 911 call made to police on June 22, 1981, in which the caller had details that had not yet been made public by police, was from the killer. The call came from a phone booth at Gate 6 of the steelmaker Dofasco, where Badgerow worked. The Crown has argued that caller was Badgerow.

For every theory one side has argued, the other side has come up with a different version of events.

"The issue is not which of these two versions is true," Flynn told the jury. "Robert Badgerow does not have to prove Brian Miller is the one who killed Diane Werendowicz."

In fact, he said, the jury didn't have to believe either versions to be true.

Verdict must be 'only reasonable conclusion'

Flynn also cautioned the jury of putting too much weight into Badgerow's admission that he was found guilty of the crime in his first trial.

"The prior conviction is just one of many factors for you to consider," he said, adding jurors should use their "common sense and experience" when weighing all the evidence.

Robert Badgerow does not have to prove Brian Miller is the one who killed Diane Werendowicz.- Justice Patrick Flynn in his charge to the jury

Flynn also noted 20 witnesses were called to testify about who they thought was on the 911 call. Nine of those witnesses said it was Badgerow, nine didn't know who it was but said it wasn't Badgerow and two said it was Miller.

He said the jury must be "very cautious" when considering the testimony and "miscarriages of justice" can happen due to mistaken voice identification.

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"It would be dangerous to conclude from this evidence alone that the Crown has proven its case against Robert Badgerow," Flynn said.

"Before finding Robert Badgerow guilty, you must be satisfied beyond a reasonable doubt that the guilt of Robert Badgerow … is the only reasonable conclusion that can be drawn from the evidence," Flynn said.

Questions jury must ask

Flynn said there are five questions the jury must answer yes to, in order to find Badgerow guilty:

1. Did Badgerow cause the death of Werendowicz?
2. Did he cause her death unlawfully?
3. Was he in the "state of mind" for murder?
4. Did he rape Werendowicz?
5. Were the rape and murder of Werendowicz part of the same sequence of events?

If the jury answers yes to all these, he must be found guilty of first-degree murder.

If the jury does not think he had the state of mind for murder, but did kill her, then he would be guilty of manslaughter.

If he was in the state of mind to commit murder, but did not rape her, he is guilty of second-degree murder.

If he raped her, but her death was not in the same sequence of events as the rape, then he is guilty of second-degree murder.

Court does not sit on Friday. The remainder of Flynn's charge will be completed Monday morning, and then, for a fourth time, Badgerow's fate will lie in the hands of a jury.