Ontario's highest court has rejected James Vernon Randall's appeal of his Feb. 14, 2003, conviction for first-degree murder in the death of Jennifer Zumach, his common-law spouse.

Scott Cowan, who had formed the defence team along with Toronto lawyer Dick Derstine in the fourweek 2002-03 trial before Mr. Justice Terrance O'Connor and a jury, represented Mr. Randall, 37, before Justices Marvin Catzman, James MacPherson and Eileen Gillese on Tuesday of last week (Jan. 23).

In its written judgment, the court noted Mr. Cowan had based the appeal on three grounds: that the trial judge erred by "failing to give a limiting instruction with respect to one aspect of the testimony of witness Sylvia Girolamo"; that Justice O'Connor had given inadequate instruction to the jury relative to the expert testimony of Dr. Toby Rose; and that "the jury's verdict of first-degree murder was unreasonable because there was insufficient evidence of planning and deliberation."

The three judges of the Appeal Court, however, were unanimous in their rejection of all three the grounds cited by Mr. Cowan and the appeal co-counsel, Toronto lawyer Joseph Di Luca.

With respect to Ms. Girolamo's evidence that Mr. Randall had told her Ms. Zumach was missing, the appeal judges acknowledged that there had been some confusion of timing in the evidence, but also found that the defence had chosen not to cross-examine as to dates.

The appeal judges noted that Dr. Toby Rose is a forensic pathologist who testified at the 2003 trial that Ms. Zumach had died from a "blunt force head injury" (from a hammer) and also noted that "one of the reasons" she believed the trauma had occurred prior to death was that Mr. Randall had attempted to hide the body.

(Mr. Randall had maintained at the trial that Ms. Zumach's death was accidental; that her carotid artery had been severed by a splinter of glass from a bottle that had shattered when he threw it at the wall behind her. The timing of the skull fracture was crucial at the trial. The lone defence witness - former Manitoba chief pathologist Peter Markestyn - contended that the fracture could just as well have been from a clamp that Mr. Randall used to secure Ms. Zumach's head as he was cutting up her body. As the head had been severed from the body, which had decomposed prior to its discovery, there was no reliable way of knowing whether or not the carotid had been severed prior to death.)

Mr. Cowan's appeal was based not on Dr. Rose's testimony versus Dr. Markestyn's, but on Justice O'Connor's wording of his charge to the jury.

Justice O'Connor had said, "You should disregard [Dr. Rose's] opinion that the fracture occurred more likely before death, if you find she based it only on the hiding of the body."

At the appeal, Mr. Cowan said the trial judge should have instructed the jury to disregard Dr. Rose's evidence "to the extent" that it was based on the evidence relating to the hiding of the body.

The three appeal judges found that it would have amounted to the same thing. "To our eyes, this is a semantic distinction without a difference," they wrote in their judgment.

With respect to the verdict, the Appeal Court ruled that it was reasonable. "The legal test on this issue is whether a reasonable jury, properly instructed in the law and acting judicially, could have concluded that the murder was planned and deliberate.

"We conclude that the jury was properly instructed in the law. On the evidentiary point, in our view the Crown tendered a substantial body of circumstantial evidence relating to the appellant's conduct both before and after Ms. Zumach's death that served as a proper foundation for the jury's verdict."

Mr. Randall is serving a life sentence and will normally not be eligible to seek parole until 2025, 25 years after his arrest in 2000.