Warning: This story contains details some readers may find disturbing. A B.C. senior convicted of murder in December 2024 has had his conviction set aside by the province’s highest court. The B.C. Court of Appeal ordered a new trial in the case of Adrianus Johannes Rosbergen after concluding that the trial judge made errors in her instructions to the jury in the case. Rosbergen was 82 years old when the jury convicted him of second-degree murder for the February 2017 killing of Allen Skedden, which happened the day before Rosbergen and Skedden were due in court for an enforcement hearing related to a tenancy claim. After his conviction, Rosbergen received a life sentence, as is mandatory in all murder cases. Parole eligibility was set at 12 years. Last year, the appeal court revoked Rosbergen’s bail, which had been granted while he appealed his conviction. At the time, the high court reasoned that because of Rosbergen’s advanced age, the “enforceability” of his sentence was paramount. If he remained out on bail during his appeal, and the appeal were unsuccessful, he would be even older and that much less likely to serve a substantial portion of his sentence. In the decision the appeal court issued Thursday, however, the opposite scenario came to pass. Writing for the three-judge panel, Justice Margot L. Fleming found that the trial judge had made a “material misstatement” about the evidence presented by an expert witness when charging the jury at the conclusion of the trial. Fleming also concluded that the judge had given the jury an “inadequate and incomplete” warning about the lack of credibility of the Crown’s key witness. ‘Suffocation is likely’ The material misstatement occurred in the trial judge’s summary of the testimony of a forensic pathologist identified in Fleming’s decision as “Dr. Morin.” The decision quotes at length from transcripts of Morin’s testimony about Skedden’s cause of death. The man’s body was found on a rocky bank of the Fraser River in Richmond on March 2, 2017. “A police officer who attended the scene noticed a piece of tape, also described as duct tape, hanging around Mr. Skedden’s lower mouth area and a sleeping bag and flashlight nearby,” the decision reads. “Another police officer later noticed a piece of tape resting behind Mr. Skedden’s neck. Mr. Skedden’s DNA was identified on the tape and sleeping bag.” Morin identified five rib fractures and a fracture of one of the bones in Skedden’s left forearm during the autopsy, according to the decision. There was also “extensive bruising and a relatively linear red mark” on Skedden’s neck, where there was also “a sticky residue on the skin.” The pathologist testified that Skedden’s cause of death was undetermined, telling the court that there was no evidence to suggest he had died of natural causes, but “too many question marks” to determine a definitive cause of death. During Morin’s testimony, he discussed the possibilities of strangulation and suffocation, and the differences between the two. While strangulation typically leaves behind injuries beyond marks on the neck, the doctor told the court, suffocation is “often a diagnosis of exclusion.” “At autopsy, there aren’t really a lot of findings that we would see that would let us know that someone’s been suffocated, and it’s because someone dies because they don’t have enough oxygen, and that doesn’t leave something that I can identify at autopsy,” Morin testified, as quoted in Fleming’s decision. While the trial judge noted in her charge to the jury that the cause of death was ruled undetermined, she also told them, “Suffocation is likely, but cannot be determined on the basis of the autopsy alone,” according to the decision. Rosbergen’s lawyers argued that telling the jury suffocation was likely was a significant misstatement on the part of the judge, and that it had resulted in “significant prejudice” to their client. The Crown, meanwhile, characterized the misstatement as “minor” within the context of the overall charge to the jury. Fleming sided with the appellant. “It is clear from the transcript of his evidence that Dr. Morin did not say suffocation was likely, and it was inaccurate to summarize what he did say about suffocation in this way,” the decision reads. “Throughout his evidence, Dr. Morin was steadfast in his view that a cause of death could not be determined. At most, he indicated suffocation was a possibility.” Further, Fleming found that the trial judge’s charge to the jury had “encouraged” it to consider her misstated summary of Morin’s evidence when considering whether the Crown had proven the elements of second-degree murder beyond a reasonable doubt. Witness credibility Rosbergen’s appeal also argued that the trial judge had given the jury insufficient warning about the credibility of Richard Anderson, a friend of Rosbergen’s who police had arrested early in their investigation of Skedden’s death. Anderson told the court that Rosbergen had asked him to clean out the box of a storage trailer on a property that Rosbergen had rented. The witness claimed that “the water in the bucket turned red as he was washing the floor of the trailer with a sponge,” according to the appeal court decision. “Very upset by this, he asked the appellant ‘what the hell’s going on’ and the appellant told him ‘don’t worry about it,’ ‘he’s gone,’ and ‘I tied him up with a rope and I threw him in the drink,’” the decision reads. No other evidence presented by the Crown corroborated Anderson’s account of Rosbergen’s alleged confession, according to Fleming’s decision. At the trial, the defence went over Anderson’s “lengthy criminal record” and admission that he had lied to the police a lot in the past. The trial judge reminded the jury of this and warned it to use caution when considering whether to rely on Anderson’s testimony, but Rosbergen’s lawyers argued on appeal that the warning was insufficiently forceful. The Crown argued that the judge’s warning was adequate, but Fleming again sided with Rosbergen. “I agree with the appellant that the instruction did not adequately explain why it was unsafe or dangerous—based on the evidence pointing to a serious history of dishonesty and untrustworthiness—to accept Mr. Anderson’s (unconfirmed) inculpatory evidence,” the decision reads. “The jury may very well not have appreciated it was necessary to assess Mr. Anderson’s credibility with particular care, or how to engage in a particularly careful assessment,” it later adds. Accordingly, Fleming set aside Rosbergen’s conviction and ordered a new trial. Asked whether it would pursue a new trial, the B.C. Prosecution Service told CTV News it is “assessing the case to determine if the charge assessment standard continues to be met.” Prosecutors only approve charges and pursue cases in the courts if their charge assessment guidelines are met. Under the guidelines, Crown counsel must be satisfied that there is a substantial likelihood of conviction and that “a prosecution is required in the public interest.” “This two-part test applies at all stages of the prosecution,” the service said in an email. “If, at any point, the prosecutor concludes that the evidentiary standard is no longer met or that a prosecution is no longer required in the public interest, a prosecution cannot proceed.”
