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Ten things jurors at the Laura Babcock trial did not hear

Last Updated Dec 12, 2017 at 2:40 pm EDT

TORONTO – A jury is deliberating the case of two men accused of killing a Toronto woman and burning her body in an animal incinerator. Dellen Millard and Mark Smich pleaded not guilty to first-degree murder in the presumed death of Laura Babcock, whose body has not been found. Here are 10 things jurors didn’t hear.

TIM BOSMA — Millard and Smich were both convicted of first-degree murder last year in the death of Tim Bosma, an Ancaster, Ont., man who took the pair on a test drive while trying to sell his truck. The jury never heard Bosma’s name, nor did they hear that the accused burned his remains in an animal incinerator also suspected of being used to dispose of Babcock’s body.

WAYNE MILLARD — The jury didn’t know that Millard also faces a first-degree murder charge in the death of his father, Wayne Millard, who died on Nov. 29, 2012 — about five months after Babcock’s presumed death. His death was initially deemed a suicide, but police re-opened the investigation after arresting Dellen Millard for Bosma’s death. The trial for Wayne Millard’s death is scheduled to begin on March 20, 2018.

“THRILL-SEEKING” MOTIVE — The Crown, who alleged Babcock was killed for being the odd woman out in a love triangle with Millard and his girlfriend, wanted to introduce a second motivation for Babcock’s killing — a “thrill seeking” motive that detailed Millard and Smich’s lengthy criminal behaviour leading up to the young woman’s disappearance and after. Prosecutors wanted to bring up alleged incidents over a two-and-a-half year period, dubbed “missions” by Millard, that included stealing plants, trailers, trafficking drugs and smuggling drugs into the country. Justice Michael Code, who presided over the trial, deemed it too prejudicial to the accused and ruled out anything referring to the pair’s “broader criminal conspiracy” that the two discussed at length in text messages.

JUDGE-ALONE APPLICATION — Smich’s lawyers asked the province’s Attorney General for a judge-alone trial arguing the 30-year-old believed he could not receive a fair trial due to the intense publicity from the Bosma case. After the Attorney General refused, Smich’s counsel brought a motion arguing that the decision violated his charter rights since proceeding with a jury would result in what he alleged would be an unfair trial. The judge dismissed the motion because it assumed the court could not find 12 fair and impartial jurors. Seven of 14 people selected to serve on the jury — 12 jurors and two alternates — had heard about Millard and Smich beforehand, but said they could set that information aside.

MILLARD’S EX-GIRLFRIEND — Jurors never heard directly from Millard’s ex-girlfriend, a key party in his alleged motive to kill Babcock. The Crown cancelled a plane ticket purchased to bring Christina Noudga from Europe, where she now lives, to testify at the trial. Instead, the Crown showed the jury letters Millard had sent to Noudga advising her on what to tell authorities when they questioned her about Babcock’s death. The jury did not hear that Millard wrote the letters from jail — where he was held for Bosma’s killing — nor did it hear that Millard was not allowed to contact Noudga. Millard, who represented himself, also decided not to call Noudga to the witness stand.

SEVERANCE — In June, both Millard and Smich wanted to be tried separately. Millard wanted the case severed because he worried about a “cut-throat” defence where Smich would take the stand and blame him for Babcock’s death. Smich’s lawyers told the court they didn’t intend to go this route, yet it remained a possibility. Smich wanted to sever the case for a few reasons, one being that Millard had caused what he said was an unreasonable delay in trial proceedings. The judge dismissed the severance application.

UNREASONABLE DELAY — Smich filed what’s known as a Jordan application, citing unreasonable delay. He alleged Millard and the Crown in both the Babcock and Bosma matters caused unreasonable delays and his murder charge against Babcock should be stayed. The judge dismissed Smich’s application, having determined the net delay was 29 months when the Bosma case was factored in. The Supreme Court has deemed that cases in Superior Court should be heard within 30 months.

CROSS EXAMINATIONS — Crown prosecutors argued to have an appointed lawyer cross-examine three witnesses close to Babcock rather than having Millard question them. Those three witnesses, Babcock’s father, her ex-boyfriend and Smich’s ex-girlfriend, had expressed concern about being grilled on the stand by Millard. The judge denied the request, citing Millard’s right to conduct his own defence personally, but recognized it would be difficult for all three.

GUNS — The jury heard from Matthew Ward-Jackson, who said he sold Millard a gun days before Babcock disappeared. Jurors didn’t hear that Millard bought a different handgun — used to kill Bosma — from Ward-Jackson on Feb. 10, 2012, and then bought another handgun from him in September 2012. The Crown wanted the February gun deal as evidence to provide context that Millard knew Ward-Jackson could get him a gun because the man had sold him a gun already. It proved planning and deliberation, the Crown said. The jury eventually heard Ward-Jackson confirm Millard’s previous “interest” in firearms but no specifics.

SHACKLES — The judge allowed both accused to sit at counsel’s tables, rather than in the prisoner boxes, largely because Millard was representing himself. The judge had court staff set up black curtains on the outside of the tables in order to shield the jury from seeing Millard and Smich’s leg shackles.