New trial ordered in killing of toddler

There is no question three-year-old Venecia Audy was sexually assaulted and brutally killed. Now Manitoba justice officials will get a second chance to hold someone responsible for a crime that helped spark a review of Manitoba's child-welfare system.

Jason Kines was acquitted of first-degree murder, sexual interference and aggravated sexual assault last March after a Dauphin trial judge refused to allow a key piece of evidence to be used against him. The Crown filed an appeal, citing a miscarriage of justice.

The case was argued Thursday in Winnipeg. It took less than an hour for the three-justice panel to rule in favour of the Crown, overturn the acquittal and order a new trial.

Venecia died in August 2006 while living with Kines and her mother, Melissa Audy, at their home in Bowsman, about 20 kilometres north of Swan River. Venecia suffered numerous injuries, including a fractured skull, lacerated liver, broken ribs, a spinal injury, numerous bruises throughout her body and several human bite marks. She was also undersized, weighing just 27 pounds.

"All of the evidence, when construed as a whole, points to Jason Kines as the person who committed this murder," Crown attorney Donovan Dvorak told jurors in his opening statement in February at the start of Kines' trial.

He admitted the case against Kines was largely circumstantial.

"He was not present when Venecia died, but it is the position of the Crown that not only was he present when the injuries that caused Venecia's death occurred, but that he caused them," Dvorak said.

The trial took a stunning twist when Queen's Bench Justice Brian Midwinter agreed with a defence "no-evidence" motion after three weeks of testimony, saying there wasn't sufficient evidence against Kines to put his fate in the hands of a jury.

Kines, 32, pleaded guilty to failing to provide the necessities of life and was given 10 months in jail in addition to time already served. Audy pleaded guilty to the same charge in 2009.

Much of the case against Kines involved bite marks on Venecia's buttocks and vaginal area the Crown claimed were from Kines. A forensics expert had testified Kines was the probable biter, but Midwinter dismissed that evidence, saying a link to Kines had not been proven "beyond a reasonable doubt."

The Crown's appeal focused on that issue, saying jurors should have been allowed to consider the evidence. Manitoba's high court agreed.

"I have every confidence that even if it goes to a jury again, he will be acquitted," defence lawyer Jody Ostapiw said Thursday. Kines remains free on bail. No new trial date has been set.

At her sentencing, Audy admitted to waiting several hours before calling 911 to report her daughter was severely injured. Audy told authorities Venecia had fallen down the stairs.

Kines wasn't home when the girl died and was out the night before Venecia was killed. A friend who picked him up for work the next day said he saw Venecia alive. That contributed to Midwinter's decision, as did the fact the Crown could not prove Kines was the only man who might have violated the child because the basement window opened wide enough to admit an adult.

Audy had her first child when she was 15. She was deemed unfit to parent and the children were placed with a family member as part of a voluntary order in 2003. Audy later fought to regain the children, who were returned to her in March 2006.

The province asked children's advocate Billie Schibler to look into the case and those of 15 other children involved with CFS who died in 2004 and 2005. The province never released the complete report, though some recommendations have been made public, and Venecia's death was one of several that sparked a $48-million overhaul of the provincial child-welfare system.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition October 12, 2012 A8