Evidence points to Robert Badgerow, Crown says in Diane Werendowicz murder trial summation

It's no coincidence evidence points to Robert Badgerow as the man who killed Diane Werendowicz in 1981, Crown Michael Fox said in closing arguments of the first-degree murder trial Wednesday.

"It means we have the right man," he said.

Fox said the defence has argued too many things were a coincidence.

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"The defence throws up multiple theories for consideration, one after the other. It is like casting handfuls of straw on the surface of the water," Fox said. "It looks solid, it covers the surface, it obscures the view of the depths, but when grasped, it does not float."

Badgerow, 58, is accused of killing 23-year-old Werendowicz in June 1981. Her body was discovered face down in a creek at the bottom of a ravine, the top of her body under a tire. She was dressed, although police discovered she was not wearing underwear.  

The Crown has alleged Badgerow raped and killed Werendowicz in the ravine.

The defence has said Badgerow had a chance encounter with Werendowicz on June 18, 1981, but he was not responsible for her death.

This is the fourth time Badgerow has been tried for the Registered Nursing Assistant's death. 

Alternate suspect

The defence said the two had a casual encounter – Badgerow met Werendowicz in the parking lot of Malarky's, a Hamilton bar, smoked a joint in Badgerow's car and they had sex in the backseat.

The two parted ways. Werendowicz started walking home and that's when, the defence argued, she was attacked by another man.

The defence throws up multiple theories for consideration, one after the other. It is like casting handfuls of straw on the surface of the water.- Crown attorney Michael Fox

The defence said that other man was Brian Miller – now a convicted sex offender and a man who was also a suspect in Werendowicz's death.

But Fox, the Crown lawyer, said Miller's other crimes do not match the rape and murder of Werendowicz.

"Attributing this offence to Brian Miller is akin to simply rounding up the usual suspects," Fox said.

The defence also said there was no evidence Werendowicz had been raped and instead, the evidence showed she had consensual sex.

But the bottom of the ravine tells a different story, the Crown argued. Her underwear was found near her shoes, which were sitting nearby the body and tied together. Flower seeds found in her hair suggested she had been on the ground and grass seed in her pubic hair supported the view she was at some point, naked from the waist down and in contact with the ground. Her face had injuries consistent with being pushed into the creek bed. She had bitten her tongue and creek debris was found in her mouth and bronchi.  

Trace of 911 call accurate

The defence also focused on a 911 call in which the male caller offered details police had not yet released publicly.

Defence lawyers Russell Silverstein and Ingrid Grant questioned the accuracy of the trace, and also said it's unclear who made the call, but it was not their client.

Fox said they were wrong on both counts.

"Consider the improbability of coincidence that the trace ended up at Dofasco Gate 6 where Robert Badgerow was working," Fox said. "If the trace had sent officers scrambling to cut the receiver from one of the thousands of private residential homes in Hamilton, then a mistake might be inferred – but not so here."

Crown witnesses 'gold standard of credibility'

Fox also said nine of the Crown's witnesses testified the call was made by Badgerow, including a former cop who had grown up with Badgerow, a friend and former co-worker of Badgerow and one of Badgerow's ex-girlfriends.

He said those three witnesses in particular were "the gold standard of credibility." They were friends and family and had no reason to point the finger at Badgerow.

"The truth was clear to them and they acted upon it," Fox said.

The truth was clear to them and they acted upon it.- Crown attorney Michael Fox

In his final address to the jury Tuesday, defence lawyer Silverstein said the only witness that is reliable to identify the 911 caller is Beth Groves.

She heard the tape without knowing the context and identified it as Miller.

Her "unshaken identification" is enough to raise reasonable doubt it was Badgerow who made the call, Silverstein said.

But Fox said when Groves took the stand in a previous trial, she became combative when it was suggested her memory might be faulty. She also told the court "nobody can be 100 per cent sure about anything" when asked if she was 100 per cent certain it was Miller's voice on the tape.  

As well, Fox said, Miller was working at Stelco on June 22, 1981, when the call was made. That was seven kilometers away from where the call was traced to, and Fox noted, police were unaware of Badgerow's DNA being inside Werendowicz when they traced the call back to the booth.

The Crown completed its closing arguments by early afternoon Wednesday.

Justice Patrick Flynn indicated his charge to the jury will take more than one day before they retire to deliberate.

Flynn's address is scheduled to begin Thursday morning, adjourn for Friday, and will continue Monday.