18 Surrey/North Delta Leader Thursday, May 2, 2013
Surrey man appeals life sentence Bradley Benham convicted in the 2005 death of his common-law wife Lisa Cubin
by Tracy Holmes The appeal of a man
serving a life sentence in connection with the November 2005 death of his common-law wife in South Surrey was heard in Vancouver last week. As family members of victim Lisa Cubin and appellant Bradley Benham listened from the gallery, defence
counsel Richard Fowler outlined his client’s application to advance fresh evidence, and an “allegation of the ineffective assistance of counsel” to B.C. Court of Appeal Chief Justice Lance Finch and Justices David Frankel and Anne MacKenzie. “The essence of the claim is trial counsel’s advice to the appellant
that he should not testify and no defensive evidence needed to be called… did not in the circumstances of this case meet the standard,” Fowler said. “The defence position was not properly advanced.” Benham was convicted of seconddegree murder in November 2008, three years after 35-year-old
Cubin was found dead on her living room floor the morning following a birthday party for the couple’s young daughter. An autopsy determined Cubin had been strangled. While the case against Benham was built entirely on circumstantial evidence, following a 19-day trial in B.C. Supreme
Court, Madame Justice Barbara Fisher found “the only conclusion arising from the evidence is Mr. Benham intended to cause Miss Cubin harm.” Thursday, Fowler described trial counsel’s decision not to call Benham’s father as a witness, nor Benham himself, as mistakes that led the trial judge to the only finding
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possible. “At the end of the day, the only conclusion you could come to is a conviction of second-degree murder,” he said. There is “more than a possibility that a miscarriage of justice occurred.” Crown Mary Ainslie countered that the defence counsel’s strat- lisa Cubin egy – which included not calling Benham’s charge, but Fisher father Michael as a found the evidence did witness after question- not support the more ing him during a preserious accusation; a liminary inquiry – was conclusion she may supported by his client not have reached had at the time. Michael Benham taken “We cannot secondthe stand. guess counsel’s deci“Mr. Benham was sions. We were not well-defended. He was at the preliminary ultimately acquitted of inquiry,” Ainslie said. first-degree,” Ainslie “Never did Bradley said. Benham say, ‘call my “The argument father.’” before this court… Defence counsel (has) not met the Stan Nozick had sugthreshold or standard gested during trial that that the court has set Michael Benham had out in finding incomequal opportunity to petence. There was a kill Cubin, but Fisher meaningful defence.” found otherwise. Other appeal points Fowler said testimony Fowler raised during from Michael Benham the two-day hearing heard during the preincluded the admission liminary at trial of inquiry hearsay included evidence statements regarding that could the nature have of the created relationship reasonable between doubt at Cubin and trial. Bradley “In the Benham; limited the admistoolkit sion of a we have statement defending Richad Fowler Benham people on made to a murder probation cases, this officer; and is gold,” “demeanFowler told the court. our evidence” used to Asked if he was identify Benham as the suggesting that calling driver of a truck seen in Michael Benham to the area before police the stand would have arrived at the scene. presented a low risk of Outside court, damaging the defence’s Cubin’s mother, Lin, case, Fowler agreed. said the outcome of “This is one of those the appeal is irrelevant. rare cases where calling “It doesn’t change a witness can’t possibly anything,” she said. make it worse,” he said. “You can argue all you Ainslie – noting want. The bottom line allegations of “inefis, Lisa’s gone.” fective assistance” are Benham’s sister rarely brought forward Michelle Chu and rarely successful – described the whole disagreed. situation as a sad one At the preliminary that has impacted inquiry, Nozick “tried many people. out the evidence of “It’s unfortunate this Michael Benham,” is happening,” Chu said. Ainslie said. “It’s affects everyone. It’s “He came to a conripped us apart, too. I clusion… this witness miss Lisa, too.” was not (credible).” Ainslie said it could Ainslie noted that be six months or lonthe junior Benham ger before a ruling is had initially faced a made. first-degree murder tholmes@peacearchnews.com
“(There is) more than a possiblity that a miscarriage of justice occurred. ”