TORONTO - Some passages from the Ontario Court of Appeal judgment acquitting Steven Truscott of the 1959 rape and murder of 12-year-old Lynne Harper:
"One aspect of the record that remains unaffected by the new evidence is the evidence relating to the crime scene. That evidence is essentially the same today as it was some 48 years ago when the jury first heard it, and it remains as puzzling today as it was then. We propose to mention three troubling features of this evidence because they form part of the complete record and must accordingly be taken into account in assessing the overall strength of the Crown's case. These features provide more questions than they do answers. Experience shows that loose ends of that nature can, and often do, give rise to a reasonable doubt.
"The first puzzling feature of the crime scene arises from the undisputed evidence of Dr. Penistan that Lynne died in Lawson's Bush where she was found and that she was either dead or in the process of dying when she was sexually assaulted. In other words, whoever sexually assaulted her did so after he had strangled her. That series of events may account for the complete absence on her body of the type of external marks of violence, such as bruising, which one would normally expect to find if she had struggled with her assailant, initially to fend off his sexual advances, and then to prevent him from strangling her to death with the sleeve of her blouse.
"While far from conclusive, that gruesome picture -- no struggle, the use of her blouse as a garrotte and sex while she was dead or dying -- seems out of place with the actions of a 14-year-old schoolboy whose sexual advances were rebuffed by a 12-year-old classmate; rather, this picture would appear to be the work of a sexual deviant for whom sex with a dead or dying child was somehow capable of providing stimulation. Common sense suggests that Lynne would have put up a struggle if the appellant were her assailant. It also suggests that sex would have occurred while she was alive and that the mode of strangulation, likely carried out in a fit of frenzy, would have been manual, not ligature, and not with a piece of Lynne's blouse that had to be torn and adapted to a specific use. ...
"With respect, there are at least two glaring flaws in the Crown's theory at trial. First, it presupposes, without a scintilla of supporting evidence, that the appellant knew how to render a person unconscious, without leaving a mark, by means of a choke-hold. Second, it fails to account for the cut on the top of Lynne's left foot and the mud on the top of her right foot. To be consistent with this evidence, on the Crown's theory, the appellant or Lynne would have had to remove Lynne's shoes and socks before the appellant dragged her through the fence. No credible theory has been advanced to explain why the appellant and Lynne would have engaged in such bizarre behaviour.
"The third feature of the Crown's theory that remains a mystery is the location where the appellant and Lynne are supposed to have entered the woods. The conundrum results from the fact that one week after the appellant's arrest, Lynne's locket was found on a section of barbed wired fence running in a northerly direction parallel to the County Road, some 280 feet south of the entrance to the tractor trail.
"At trial, Mr. Hays suggested to the jury that the appellant must have initially taken Lynne's locket as a souvenir. In the days following her disappearance, when the investigation began to narrow in on him, he returned to the bush `and planted 1/8it3/8, so to speak, where it was found.'
"On the first Reference, Mr. Bowman for the Crown submitted for the first time that the appellant may well have taken Lynne into the bush through the section of fence where her locket was found. The difficulty with that theory, however, is that with all of the vehicular and pedestrian traffic on the County Road that evening, surely someone would have seen the appellant's distinctive bicycle parked by the side of the road -- unless perhaps he dragged it over the barbed wire fence and into the woods to a place where it could not be seen, and then returned to drag Lynne to the site of her death.
"It is not our function to solve the crime. It is our function to decide whether the appellant should be acquitted. The body of evidence surrounding the crime scene, including the brutal nature of the crime, the lack of defensive injuries on Lynne Harper's body, the nature of the injuries she did sustain, and the general uncertainty as to the place and manner by which she entered the woods, leaves a series of unanswered questions. In deciding what a jury would likely do at a hypothetical new trial, experience teaches that these are the kinds of questions that are likely to move a jury in the direction of reasonable doubt. To that extent, these features of the crime scene evidence play a part in our ultimate conclusion.''
