Photo: Diana Nethercott, Special to The Spectator
HAMILTON (CP) - A man who has spent nine years behind bars for the murder of a school teacher was freed Wednesday as a result of fresh evidence that again raises questions about the performance of Ontario's chief crime lab.
Christopher McCullough walked out of jail after the Ontario Court of Appeal overturned his second-degree murder conviction and unanimously ordered a new trial McCullough, 29, was sentenced to life in prison with no parole for 18 years for the 1989 murder of Beverley Perrin, 55, of Stoney Creek, Ont.
Perrin, who was apparently sexually assaulted before being strangled with a nylon rope, was last seen alive Feb. 13, 1989.
Her body was found in a farm field two days later.
After a 15-month investigation, Hamilton-Wentworth police arrested four men, including McCullough.
The other three pleaded guilty to lesser charges and received sentences of up to seven years in prison.
It has been brought to my attention that the above line is inaccurate. Nick Nossey did not plead out to anything, was not found guilty of anything and was, in fact, not involved. So how could he be arrested?? While this may seem like a small error in a five year old report injusticebusters know there can be serious repercussions on individuals when these errors occur. In 1997 a local reporter published information which identified Richard Klassen and the community he lived in without publishing his name which was under a court gag order. The report was construed by some people as suggesting he was guilty. Shortly afterwards his home was vandalized, his children were badly treated at school and he subsequently moved to Manitoba. It took some serious pursuading to get him to come back and fight for his civil claim.
-- Sheila Steele
But several pieces of potentially important forensic evidence now point to six other people.
Two items in particular were overlooked "for reasons that have not been explained," said Justice Marc Rosenberg, who spoke on behalf of the three-member panel.
The evidence consists of two paper napkins found in a field near where Perrin's body was dumped, which were originally reported by the Centre of Forensic Sciences as containing "no significant findings."
However, testing done by the centre last year showed that one of the napkins, in fact, was "soaked with semen," while the other contained three pubic hairs, the court noted in its judgment on Wednesday.
The DNA tests also show the semen doesn't match that of McCullough or the three other men.
The appeal court should have acquitted McCullough outright, said his mother Rossi McCullough.
"I'm disappointed they didn't have the courage to do that," she said.
She also called for a public inquiry into the allegations of police misconduct that have been raised by two key Crown witnesses who have since recanted their evidence and have admitted committing perjury nine years ago.
One of those witnesses was a jailhouse informant, who said he received more than $8,000 in reward money and the benefits of a witness protection program in exchange for his testimony.
The other was a woman who said she lied in her trial testimony after police told her that her husband's fingerprints were found in Perrin's car, even though they had not been.
Her claim was startingly similar to testimony about an alleged fingerprint offered by a Durham Region police sergeant at the trial of Guy Paul Morin, whose wrongful conviction led to a public inquiry.
The forensic centre has invested considerable effort in improving its procedures after being heavily criticized by a judicial inquiry for mistakes and coverups the judge determined contributed to Morin's wrongful conviction.
Ontario's Ministry of the Attorney General is refusing to release any information about a 1991 investigation into the conduct of the Crown attorney who handled a plea bargain for a key figure in the Beverley Perrin murder trial.
Steven Wayne Clarke was allowed to plead guilty to charges of forcible confinement and being an accessory after the fact, in exchange for his testimony, which falsely accused three other men of the 1989 abduction and murder of the Stoney Creek school teacher.
One of those men was Chris McCullough, who was eventually convicted of the murder. He served almost nine years in prison until Ontario's Court of Appeal recently ordered a new trial. The Crown is still deciding whether to retry the case or simply withdraw the charges against McCullough.
The decision by the appeal court once again puts the focus on how the case against McCullough was handled by the prosecution, nine years after troubling questions were first raised with the attorney general's office.
Brian Greenspan, the lawyer who handled McCullough's appeal, is now calling for an independent inquiry into the conduct of police and the province's Centre of Forensic Sciences, which overlooked crucial evidence from the crime scene.
Much of the evidence used to convict McCullough came from Clarke, but his testimony has subsequently been exposed as a patchwork of lies.
On Dec. 19, 1990, Crown attorney David Carr and Clarke's defence lawyer, Beth Bromberg, presented an agreed statement of facts to the judge portraying Clarke as a reluctant accomplice in the crime on the night in question.
But one day earlier, at a preliminary hearing for the other three men, Clarke had testified that he had played a much more active role — that he had taken the lead in abducting Perrin, sexually fondled her, beat her, grabbed a rope from the trunk of the car and held her down while she was tied up.
At one point, Clarke was asked what happened.
"Oh, there was some kicking, punching," replied Clarke.
Who was being kicked and punched?
"Mrs. Perrin," he answered.
And who was doing the kicking and the punching, Clarke was then asked.
"All of us."
Later, Clarke was cross-examined by Dean Paquette, McCullough's lawyer. Did anyone else touch Perrin's breasts?, Paquette asked.
"Yes, I did," said Clarke.
"So you sexually assaulted her?" Paquette asked.
"In so many words, yes," Clarke said.
None of this testimony was part of Carr's submission at Clarke's brief trial the next day. That version made no mention of Clarke's sexual assault, no mention that he was involved in the beating and no mention that he grabbed the rope from the trunk.
Instead, the Crown attorney said that Clarke leaned against the car and only watched, and at one point even told McCullough, "That's enough."
Carr was not the Crown attorney who handled the preliminary hearing, although he did make a point of telling the judge, "I just want to make it clear on the record that the facts I am placing before the court were given in evidence for the last two days by Mr. Clarke at a preliminary inquiry."
It raises the serious question of why the Crown had failed to include these important admissions, and whether the court may have been misled about Clarke's involvement in the crime.
Rob Austin, then The Spectator's editor, and Brian Rogers, the newspaper's lawyer, complained to the attorney general's office about the glaring discrepancies.
On April 10, 1991, they met with Brian Trafford, who was the ministry's director of criminal prosecutions at the time, and expressed their concerns on behalf of the news- paper. Trafford promised to look into the matter promptly.
Trafford met with Carr and Jim Treleaven, then the regional director of Crown attorneys in Hamilton. Trafford then notified The Spectator on April 12 that when a written report was submitted, he would decide, in consultation with Treleaven, whether it was appropriate to disclose it to The Spectator.
"I do feel that it is fair and appropriate for me to tell you," Trafford wrote in a letter to Rogers, "that you and your client do not have all the material information that is necessary to properly assess the conduct of the Crown attorneys in this and the related cases."
That's the last The Spectator has ever heard of the investigation, although not for lack of trying.
"We never got the written report," said Austin.
"Brian (Rogers) and myself tried to contact Trafford several times after that and Trafford was never available to speak to us.
"We never heard from him again and he just wouldn't take our calls."
A spokesman for Murray Segal, the assistant deputy attorney general, said the province could not comment because the matter is still before the court.
"The Court of Appeal has recently ordered a new trial in this case, and the Crown and police are considering their respective positions," said Brendan Crawley, a spokesman for the attorney general's ministry. "In light of that ruling, it would be inappropriate for us to make any comment on this case."
The attorney general's office has even refused to indicate whether a full investigation was ever conducted and whether a written report was ever submitted.
"Mr. Trafford assured us in our meeting that he would look into the matter," said Rogers. "Presumably, he did that. But we don't know anything more today than we knew then as to why the Crown attorney did what he did."
Trafford is now a judge in Toronto. He is on an extended vacation and could not be reached for comment.
Carr is also a judge, serving in Waterloo region. He refused to comment.
"I just can't talk to you about it," said Carr. "You'll have to talk to someone else about this."
Treleaven vaguely recalls meeting with Trafford and Carr about the issue. He also noted that it would have been Trafford's responsibility to write the report.
"I don't remember what was said and I don't remember what, if anything, was done afterwards," said Treleaven.
"I just assume from knowing Trafford that he would not have left it hanging. If he said he was going to look into something, he did."
Roslyn McCullough, Chris' mother, wrote a letter to the Law Society of Upper Canada in November 1992, asking the legal regulatory body to investigate many of the same issues about the Crown's conduct that had been raised by The Spectator.
Five months later, the law society responded by stating that the matter was not within its jurisdiction and no further action was warranted.
The written explanation seems both troubling and surprising. Since Clarke was arraigned only on charges of unlawful confinement and being an accessory after the fact, that would have been the only evidence Carr was obliged to include.
"Evidence regarding an admitted sexual assault would not be relevant to either of those charges," according to the law society's letter, "and therefore would not be appropriate to include in an agreed statement of fact relating to the foregoing charges."
Rogers pointed out that even in the case of a plea bargain, the agreed statement of facts must accurately reflect the events surrounding the crime.
"All lawyers have a duty to the court to ensure that it's properly informed and not misled," said Rogers. "A Crown attorney has the added duty of having to represent the public interest."
Steven Wayne Clarke's own mother says she hasn't seen the man in seven years and hopes she never does again.
"He's my son, and I don't know whether it's cruel or not, but I can't help but wish he was behind bars," said Kathryn Clarke, 72, who lives in eastern Ontario. "I hope they do something with him so he can't hurt anyone else... because I know how possible that is."
Her 47-year-old son is at the centre of one of this region's most contentious and controversial murder cases of the past decade or so.
If Hamilton-Wentworth police know where the unemployed drifter is today, they're not saying. Deputy Chief Bruce Elwood would only say Clarke — whose evidence led to the arrests of three men for the 1989 murder of school teacher Beverley Perrin — was not placed in the witness protection and relocation program.
Clarke, who was then 37, gave police a series of statements in 1990 that initially attempted to incriminate six different people of involvement, before eventually settling on Nick Nossey, then 21, along with Chris McCullough, 22, and Terry Pearce, 23.
Clarke was in jail for credit-card fraud at the time of giving police statements about the Perrin killing. He later pleaded guilty to lesser charges of forcible confinement and being an accessory after the fact of murder.
He claimed to have been only a passive participant and, in exchange for a lenient four-year sentence, agreed to testify against his supposed accomplices. But Clarke's story suffered a blow when two other Crown witnesses later recanted their trial testimony. Last month the Ontario Court of Appeal ordered a new trial for one of the men convicted of second-degree murder in large part on Clarke's evidence.
Chris McCullough, now 30, had been incarcerated almost nine years before being released on bail in March 1999 pending the outcome of his appeal.
The appeal court did not acquit McCullough outright but in allowing his appeal, expressed concern about whether a new trial was justified or even logistically possible.
"It will be for Crown counsel to decide whether it's in the interests of justice to proceed with a new trial, given the time that has elapsed and the substantial damage that has been done to the credibility of important Crown witnesses," said the judgment by Mr. Justice Marc Rosenberg.
Discussions now taking place between police, the local Crown attorney's office and senior staff with the Ontario Ministry of the Attorney General will determine if the Crown will proceed with a new trial. The timing of that decision is not yet known, but if they opt try McCullough again, prosecutors will no doubt have to find Clarke and bring him back to testify.
The Crown's case, however, has almost entirely unravelled since Clarke took the witness stand in November 1991.
Clarke endured four days of gruelling cross-examination by McCullough's lawyer Dean Paquette. But in the end, he delivered his part of the plea bargain, and his evidence was enough to help convict McCullough even though the jury acquitted his co-accused Nossey.
But two Crown witnesses who served to corroborate Clarke's version of events at the original trial have since confessed their testimony was all lies. The teenaged girlfriend of Terry Pearce, who was tried separately from McCullough and Nossey, maintains she caved in under intense pressure from police and gave a statement that fit their theory (and Clarke's version) of the crime.
The other Crown witness, a notorious jailhouse informant, now says he callously fabricated statements and committed perjury on the understanding police would help him get a chunk of the $30,000 reward money.
DNA tests done by the Centre of Forensic Sciences late last year have only cast more doubt on the physical evidence and on Clarke's testimony.
The witnesses' recantations leave Clarke as the only witness not to deny being at the crime scene. They mean Clarke's evidence as to what happened to 55-year-old Perrin on Feb. 13, 1989 — the night the wife and mother of four disappeared — now rides almost solely on his credibility.
What do we know about Clarke?
Clarke's mother, who has not seen him in many years, said in a recent interview she believes he's capable of killing someone.
"That man, from my experience, could very well have done this, and he would blame it on anybody else to get the blame off of him."
Kathryn Clarke was not contacted by Crown or the defence back in 1990, but said she would not have hesitated to bluntly tell them about her son.
She said as a teenager, he once flew into a rage and nearly killed her.
"I don't know what caused it, but there was long butcher knife on the table... And I don't know what I said to him, but he had me up against the wall with one hand pinned behind my back. He was holding on to the other one and he grabbed that knife and held it to my stomach — so that I could feel the point.
"And I knew if I made a sound, because my husband worked nights and was upstairs sleeping... I knew if I made a sound, I'd be gone.
" So I just kept talking more or less in a monotone and kept talking quietly until he finally threw the knife aside and went out the door."
Bob Moynes, of Cobourg, said he hasn't seen his half-brother since 1993 when Clarke's father died. Clarke's mother and father had been separated 22 years.
Moynes, who was executor of his stepfather's estate, said he gave Clarke his share of the small inheritance and then washed his hands of him.
"He's a pathological liar who has never told the truth in his entire life unless it was in his favour and suited his own purposes," said Moynes.
Clarke was born in Cobourg, Ont. on Oct. 26, 1952. In addition to his older half-brother, he has a younger sister who, according to their mother, will have nothing to do with him. "Whatever he did to her when she was young, she won't talk about it. But she won't have him around — no way," said the mother.
His behavioural problems began when Clarke was six or seven years old. Doctors determined he was of average intelligence, but suspected the boy's angry outbursts might be caused by frontal-lobe epilepsy. Clarke did poorly in elementary school, repeating almost every grade and never graduating from grade 8.
His mother tried repeatedly to get psychiatric help for him, but Clarke continued to have regular episodes of uncontrolled anger, hostility and violence toward family and other children.
His mother described her son as being either "mean and cantankerous" or suicidal during these spells. He would spit obscenities at her and threaten to harm people. He once threatened his grandmother with a knife and beat his mother up on more than one occasion.
His mother told doctors the episodes occurred about once or twice a month and in between the boy would be pleasant and even-tempered.
During pre-trial motions at the 1991 murder trial, the court heard about an incident recorded in the clinical notes of a psychiatrist who had seen the 16-year-old Clarke 22 years earlier. The doctor noted: "During one of these spells, Steven was seen in the park with a child on the ground and appeared to be strangling him. The child was younger and was unconscious and if his older brother hadn't come along, the mother (Mrs. Clarke) fears the child would have died."
Clarke's mother said she no longer remembers this incident. But at the trial, McCullough's lawyer tried to have psychiatric records admitted into evidence. The defence argued they were relevant because the slain teacher also had been strangled. Justice Paul Philp ruled the evidence inadmissible, however, because the Crown witness was then 39 and the evidence of Clarke previously strangling someone was too dated to show a predisposition to strangle someone.
Clarke was committed to Kingston Psychiatric Hospital for a 60-day assessment in 1969 after a joy ride resulted in the family car being totalled.
The clinical notes of another attending psychiatrist revealed Clarke's mother wasn't exaggerating about his propensity for violent outbursts.
"In my office... this boy displayed an instantaneous rage, shouted loudly at me and told me to 'shut up,' even though I was just trying to clarify a point," noted the doctor. "He threatened me and then refused to leave the room as I suggested he might do.
"At this time his face was very suffused, his fists were clenched and with white knuckles, and I must say, I was frightened even though this is one of the few times I ever have been in my office."
Clarke arrived in Hamilton in the mid-1980s after drifting around aimlessly for several years. He began eking out a miserable living by breaking into cars and stealing whatever he could find.
He was by this time a man with a history of psychiatric problems and alcoholism. He'd never held a real job and had a petty criminal record for thefts and drug possession.
Not much is known about Clarke's early days in Hamilton, except that sometime about 1985 the then 33-year-old drifter hung out for a while with a group of teenagers, who frequented an abandoned underground garage on Grandville Avenue where they drank beer and did drugs.
It appears Clarke drew on his memories and names and associations from this period to fabricate statements five years later and invent an alternative scenario for how Perrin was killed. McCullough, who knew Clarke casually back then, testified at his trial that he had not associated with Clarke in nearly five years.
At the time of Beverley Perrin's murder, Clarke had moved back to the Grandville area and was staying rent-free with a couple of friends who took pity on him. The apartment building was just down the street from where Perrin's car would later be found three days after her murder. One of his two male roommates testified Clarke went on nightly forays to break and enter automobiles and steal wallets or anything of value.
Homicide detectives first questioned Clarke about Perrin's murder 13 months after her body was found. Two detectives caught up with him in the in-custody area at Hamilton's old provincial courts. Clarke had just been sentenced for using stolen credit cards. The detectives suggested to Clarke that his friend, Terry Pearce, was involved in the killing of Perrin.
Clarke, who initially denied any direct knowledge of the killing, agreed at once with the officers' suggestion concerning Pearce. He said his friend Pearce told him he was the driver, that the killing started out as just a joy ride but escalated out of control.
Over the next three months, police returned to the jail again and again to re-interview Clarke and confront him about some lie or deception.
At the preliminary hearing in December 1990 and again at the 1991 trial of McCullough and Nossey, the Crown's star witness would be be caught in literally hundreds of lies, all of which he candidly admitted.
Even when it was unnecessary, Clarke could not resist the urge to lie. His lawyer told court her client advised her he was a former graphic artist who had gone to Queen's University on a scholarship during the 1970s. Nothing could have been further from the truth.
The appeal court's decision last month to order a new trial for McCullough was based on two areas of fresh evidence, the recantation of a jailhouse witness and new DNA evidence which surfaced last year after the Crown ordered the physical evidence gathered at the crime scene to be re-tested.
Among other things, the new tests revealed a facial tissue, which had been dismissed by forensic biologists at the time as insignificant, was in fact heavily stained with semen.
Another tissue contained several pubic hairs, and neither the semen nor the hairs could be linked to any of the four men tried for Perrin's murder.
DNA analysis now reveals a single unknown male — someone who has so far never been identified as a participant in the crime — was the source of that hair and semen.
Clarke testified that McCullough raped the victim for 10 or 15 minutes before wrapping a length of rope around her neck and strangling her.
"If these napkins are connected to the sexual assault and the killing, it is obvious that Clarke is lying about who sexually assaulted the victim," noted the appeal court.
"Obviously, if Clarke had been faced at trial with this evidence, the jury would have had further reason to doubt that he was telling the truth."
The tissues were found near Perrin's semi-clothed body in an open farm field off Tapleytown Road. Significantly, her DNA was not found on either facial tissue. There is nothing, therefore, to directly link the new evidence to Perrin's murder, other than their proximity to her body.
Prosecutors withdrew a second-degree murder charge yesterday against Chris McCullough, who spent nearly nine years in prison for the slaying of Tapleytown School teacher Beverley Perrin.
The decision comes a mere week after Ontario Provincial Police interviewed a Hamilton man who says important evidence he offered to police within days of the Feb. 13, 1989 murder was ignored and never used at McCullough's 1991 trial. And police notebooks or statements pertaining to the interview appear to have since vanished.
The missing witness statement of electrician David Staples is the latest development in a case marked by questionable police tactics, tunnel vision and the use of unreliable jailhouse informants. Yesterday, McCullough's lawyer Dean Paquette said it's time for a public inquiry.
Paquette said the problems with this decade-old case are equally, if not more troubling, than those raised during the inquiry into the wrongful conviction of Guy Paul Morin in 1997.
"This has combinations of both Morin and (Karla) Homolka in terms of deals that were struck. The public ought to be just as outraged here as they were with Homolka."
"The only form of inquiry in which I would have faith would be a judicial inquiry," said Paquette. He wants a judge with powers to subpoena witnesses to conduct an independent investigation.
McCullough, 31, was charged, along with three other men, in the abduction, rape and murder of Perrin, a 55-year-old wife and mother. He was sentenced to life imprisonment with no chance of parole for 18 years.
Last January, the Ontario Court of Appeal overturned the conviction and ordered a new trial for McCullough.
In a carefully worded statement yesterday, Hamilton Crown Attorney Tim Power told Superior Court Justice Alan Whitten there will not be another trial because there is "no reasonable prospect of conviction."
Two important Crown witnesses at McCullough's 1991 murder trial have since recanted their testimony and maintain they were either coerced by police or offered inducements before providing false statements incriminating McCullough.
A notorious jailhouse informant, who has been used by police in at least three other homicide investigations, told the Ontario Court of Appeal he received more than $8,000 in reward money for his perjured testimony in the case. His false evidence also earned him a spot in the witness protection and relocation program, along with about $17,000 more in rent and living expenses.
The man known only as "Jake" said he asked jail guards to place him in McCullough's cell at the Barton Street jail. He then hounded and exploited the frightened and angry 22-year-old McCullough. He finally entrapped him in a charge of counselling an undercover police officer to kill the Crown's star witness.
McCullough shamefully admitted this act before the jury at his trial. He pleaded guilty to the counselling charge and was sentenced to 10 years concurrent to his life sentence on the murder conviction.
Power did not equate the withdrawal of the charge yesterday with a vindication and there was no suggestion of an apology for McCullough from either the court or the Crown.
McCullough, who has been on bail since February 1999 pending the outcome of his appeal, said: "I'm happy it's over for me to some degree. But it's not really not over. There are still too many questions to be answered. Not just for myself, but for the Perrin family and the public. Everybody deserves to know what really happened here."
The Perrin killing was the most difficult type to solve because it involved a random abduction that left police with no obvious motive, no immediate suspects and no physical evidence that pointed to anyone in particular.
It was a disturbing and senseless crime that shocked the community and put police under immense pressure to solve the crime.
The first real break in the case came in the person of Steven Wayne Clarke, a 36-year-old petty thief and drifter. Clarke, unfortunately, led the investigation hopelessly off track through a series of deceptive and self-serving statements aimed at incriminating others and deflecting suspicion from himself.
Clarke implicated at least six men in the murder, but eventually settled on McCullough, then 22, Nick Nossey, 21, and Terry Pearce, 23.
The three younger men were all charged with murder. Clarke received a light four-year sentence and in exchange for testifying against the others, was permitted to plead guilty to forcible confinement and being an accessory after the fact of murder.
Nossey was found not guilty by the jury that convicted McCullough. Pearce pleaded guilty to manslaughter in June 1992. He now says he succumbed to intense psychological pressure and gave a false confession implicating himself and others.
His 16-year-old girlfriend also gave police a statement supporting her boyfriend's confession. Tammy Waltham believed it would save Pearce from being wrongfully charged with first-degree murder. In February 1992, Waltham publicly recanted her trial testimony in a front-page story in The Spectator. She maintains to this day that she never saw Perrin in the company of McCullough, Nossey or Pearce on the night of Feb. 13, 1989.
And now there is the perplexing situation involving an independent witness who says he saw a suspicious man lurking near the scene where Beverley Perrin's body would be found one day later.
Staples, a 42-year-old father of two, told The Spectator yesterday he was returning home from a welding course on that night 11 years ago. He was driving along Tapleytown Road when he encountered a hatchback car stopped at the head of a lane with its doors open and a man standing outside. The man with a moustache and dark hair was examining the underside of the car.
Staples was going to stop and offer help, but the man looked directly at him and he decided against it. "Something did not feel right, so I drove on."
Bothered for reasons he can't quite explain, Staples scratched out four numbers from the licence plate and posted it on his fridge at home. He also told his wife about the strange man on the road.
When the news of Perrin's murder broke, Staples contacted Hamilton-Wentworth police to tell them what he had seen. He says he was interviewed by Staff Sergeant Gary Clue, who was heading up the homicide investigation, and a second officer, whose name he no longer recalls, who took notes during their hour-long conversation.
Staples said he asked the officers how important his information was. "He (Clue) said I was the seventh person he'd spoken to and I was at the top."
He said Clue never re-interviewed him and did not return a telephone message he left during the course of the 1991 murder trial.
Paquette, who also interviewed Staples, said the man's witness statement and the officer's notebook were never disclosed to the defence.
"He saw a photograph of Chris (McCullough) in the paper and he clearly says Chris was not the guy he saw."
Paquette said the Crown attorney's office advised him it has received no information to confirm the interview actually took place. He was told Clue maintained he turned all his notebooks in when he retired. But members of the police service said they cannot find them.
Police Chief Ken Robertson said he had no knowledge of the controversy, but assured the service will look into the matter. "Our commitment is if there is new evidence, if there is things that haven't been looked at, we'll certainly conduct an investigation."
Paquette wants questions answered. "Was this evidence relevant to the trial? Why wasn't it disclosed if it existed? And thirdly, what is the situation now. If it exists, where is it now?"
A man who has spent nine years in prison for the murder of a Hamilton-area teacher has been freed as a result of fresh evidence that raises disturbing questions about the performance of Ontario's chief crime laboratory.
Christopher McCullough walked out of a Hamilton jail yesterday moments after the Ontario Court of Appeal overturned his second-degree murder conviction and unanimously ordered a new trial.
McCullough, 29, was sentenced after a 1991 trial to life imprisonment with no chance of parole for 18 years for the Feb. 13, 1989 sex slaying of Beverly Ann Perrin, 55, a Stoney Creek elementary school teacher who was abducted and strangled after visiting her husband, Gene, in St. Joseph's Hospital in Hamilton.
Three other men pleaded guilty to lesser charges and received sentences of up to seven years in prison.
But several pieces of potentially important forensic evidence now point to six other people. Two items, in particular, were overlooked "for reasons that have not been explained," Mr. Justice Marc Rosenberg said speaking for the three-member panel yesterday.
The other judges sitting on the appeal were Chief Justice Roy McMurtry and Mr. Justice Michael Moldaver.
The evidence consists of two paper napkins found in a field near where Perrin's body was dumped, which were originally reported by the Centre of Forensic Sciences as containing "no significant findings."
Testing done by the centre last year, however, shows that one of them, in fact, was "soaked with semen," while the other contained three pubic hairs, the court noted in its judgment yesterday.
The DNA tests also show the semen does not match that of McCullough or the three other men.
The test results came after a jailhouse informant recanted his evidence. The man was a key prosecution witness and the most important of six snitches who testified at the trial.
The man, known only as "D," received more than $8,000 in reward money and the benefits of a witness protection program in exchange for testifying.
He told the appeal court he completely fabricated his story that McCullough confessed.
He wasn't the only prosecution witness to recant.
Tammy Waltham, the common-law wife of one of McCullough's co-accused, Terry Pearce, said she lied in her trial testimony after police told her that her husband's fingerprints were found in Perrin's car, even though they had not been.
Her claim was startlingly similar to testimony about an alleged fingerprint offered by a Durham Region police sergeant at the trial of Guy Paul Morin, whose wrongful conviction in 1992 led to a public inquiry. The police in that case also made false claims of finding a fingerprint to pressure Morin into confessing.
Morin was convicted of murdering his 9-year-old neighbor Christine Jessop after a trial that relied on forensic evidence that was actually generated in the crime lab. Fibres that purported to link him to the crime were actually lab contamination.
The centre has invested considerable effort in improving its procedures after being heavily criticized by a judicial inquiry for mistakes and coverups that contributed to Morin's wrongful conviction.
The centre vowed to review 80 old criminal cases in the wake of a 1998 report by retired Quebec judge Fred Kaufman into the Morin case but it is unclear if McCullough's was among them.
The forensic evidence, meanwhile, is not conclusive but is "very important," Rosenberg said, adding that it undermines testimony from another key prosecution witness, Steven Clarke, one of the four co-accused, who claimed to have watched McCullough raping Perrin.
The other new forensic evidence includes:
Two pubic hairs found on the second napkin at the scene. A partial DNA profile shows they come from two people, at least one of them a man. The person who was the source of the semen cannot be excluded as the source of one of the pubic hairs. Perrin, however, has been eliminated as a source of the hair.
Body swabs taken from Perrin. At the time of the trial, the centre reported that no semen was detected on the swabs. But further investigation this year found that a "very small amount" of sperm and two spermatazoa heads had been found on the swabs, which cannot be subjected to DNA tests with the technology available, the court said.
Cigarette butts found in Perrin's car. Clarke testified that he smoked a Player's Light before the murder, the same brand as some in the car. DNA tests now eliminate all four of the original suspects as having smoked any of the cigarettes. The tests also point away from the person who left the semen.
Strands of hair found in the car were also subjected to DNA testing last year and point to another, unknown man.
While the court has ordered a new trial, Rosenberg said it will be for the crown to decide "whether it is in the interests of justice" to proceed with a new trial given the time that has elapsed.