UPDATE: CROWN CAN'T PROVE SEXUAL ASSAULT, PRE-MEDITATION, LAWYER SAYS
KELOWNA - It was a careful, calculated, purposeful sexual assault that turned into a first degree murder, the Crown in the Matthew Foerster murder trial said today in closing arguments.
With defense lawyer Lisa Jean Helps’ decision not to call any evidence on behalf of Foerster, 28, Crown counsel Iain Currie and Frank Caputo gave their closing arguments to the jury of five women and seven men Thursday morning.
Currie told the jury the two most significant issues in the case are whether Foerster committed, or attempted to commit, a sexual assault on Van Diest, and whether he intended to kill her when he inflicted the wounds that took her life. To prove first degree murder, the Crown must show Foerster’s actions were planned and deliberate, or that he killed Van Diest while sexually assaulting her or attempting to sexually assault her. Currie said the only conclusion when you add up the evidence is that Foerster is guilty of first-degree murder.
Foerster departed Lumby just after 3 p.m. on Oct. 31 2011, passed through Vernon and arrived in Armstrong around 3:46 p.m, according to cell phone records. In a police interrogation, he said he was “looking for sex.” He was in Armstrong for two hours and fifteen minutes before he attacked Van Diest as she was walking to meet friends and that fact is “everything you need to know about Mr. Foerster” Currie said. “That wasn’t a place where you go to pick up girls."
Currie said the defense may argue Foerster went looking for consensual sex. But if he was looking for a willing partner, he would have gone to a bar or a restaurant.
“He goes to a quiet little town a safe distance from his own home, where no one would be the wiser,” Currie said.
Van Diest herself painted a picture of what happened that night, Currie said. She texted her boyfriend she was “being crepped”, something he interpreted as “being creeped.” The DNA scraped beneath her fingernail and defensive wounds on her hands and forearms show she fought back when he attacked her. Currie said Van Diest "caught her own killer" when she scratched a fleck of DNA off his neck in self defence.
Foerster waited until Van Diest continued down the tracks and it was “too late for her to turn around” before he made his move, Currie said.
“You can infer from the evidence that the killer chose his spot,” Currie said.
The train tracks are a secluded area, a place where a young female, walking alone, would be very vulnerable. Foerster would have expected young people—kids, or teens too old for trick-or-treating but going anyway—to be out on the streets, likely without parents, Currie said.
Currie told the jury if they find Foerster was sexually assaulting Van Diest, or trying to by pushing her down to silence her, they can find him guilty of first degree murder.
Currie also discussed the possible argument that Foerster was too intoxicated to form the intent to kill Van Diest. In the police interview, Foerster said he “felt like he blacked out” and couldn’t remember certain parts of that night. That claim can't stand since Foerster was able to later recall, in detail, those same episodes. Foerster simply did not want to talk about it, he said. He added Foerster never says what he was drinking, how much, that he was drunk or even that he wished he didn't drink at all.
Currie also said Foerster showed a level of care in executing his plan, not consistent with being black-out drunk. Foerster was able to drive from Lumby to Armstrong. He was careful to take all evidence from the scene, except the fingernail containing his DNA, the one piece of evidence he had no control over. He took the Maglite flashlight he used to hit Van Diest over the head with, the shoelace he strangled her with, and the black coat he was wearing and threw them in a dumpster in Vernon. Foerster confessed to using the Maglite to strike Van Diest with and the shoelace to choke her in his police statement.
If he’d been drinking from a Smirnoff vodka bottle found at the scene, he surely would have removed that piece of evidence as well, Currie said.
Currie said the force used to crack Van Diest’s skull open and the pressure used to choke her “while she fought for her life” show Foerster was committed to killing her.
Looking at all the evidence together, Currie said it there is no other reason for Foerster to have been in Armstrong on a secluded path that night other than that he was looking to sexually assault someone. When that girl fought back, Foerster killed her. And that, he said, is nothing less than first degree murder.
THE OTHER SIDE OF THE STORY
In her closing arguments, Helps insisted the Crown couldn't prove Foerster was there to sexually assault Van Diest, and that he killed her while committing, or attempting to commit the act. She said there were simply too many leaps the jury needed to make to find Foerster guilty of first degree murder, stating manslaughter is the right verdict.
She said Foerster picked the lesser of two evils when asked in a police interview if he went to Armstrong for sex or because he was a predator like Clifford Olson or Ted Bundy. She said Foerster picked the option that was closest to the truth.
“The whole tenor of the statement before you is someone who is in my view wracked by his conscience, someone who is clearly devastated by what has happened, and someone who, when you look at all that evidence... is trying to explain the unexplainable,” Helps said.
“At the end of the day, we don’t know what passed between them.”
She acknowledged what occurred that Halloween night was “too severe for an accident” but said it obviously happened quickly, as if Foerster was in a panic, or intoxicated.
“That’s a tight timeline for (the Crown) to say sexual assault was a motive here,” Helps said.
If Van Diest was in fact pushed down and subdued, and sexual assault was the motive, why didn’t Foerster complete the act, Helps wondered aloud. There was no evidence suggesting she was sexually assaulted.
“If he wants to have sex with her forcibly, and he wants to assault her and he pushes her down and subdues her, why does the attack not then take place?”
She also wondered why, if Foerster was preying upon Van Diest sexually, did he draw attention to himself? Van Diest knew he was there, that much is made plain by her text “being crepped” Helps said.
She said it’s possible Foerster made a sexual proposition that “didn’t go very well” causing Van Diest to scream. She suggested Foerster may have panicked and pushed her down.
Helps said Foerster’s confession about using a shoelace to choke Van Diest is not reliable and attributed the statement to the pressure of the interrogation. She took Van Diest’s white lace bra out of exhibits and said the straps could have caused the ligature marks around Van Diest’s neck.
Helps argued it’s possible Foerster was intoxicated that night, something the jury could use to acquit him of the murder charge. She said the incident would surely “sober you up pretty quickly” and leave you capable of driving home and forming the idea to remove evidence from the scene. She added disposing of the evidence is something a panicked person is likely to do, though she added in this age of forensic science that it was a “stupid hope” and one that makes Foerster “not particularly bright.”
Contrary to the Crown’s argument of the time and place being the perfect place to sexually assault someone, Helps questioned whether it was an “optimal place for a sexual assault.” She noted it was a busy Halloween night with plenty of people in the vicinity, if not on the trail itself. A balcony and windows overlooked the corridor, she said.
Helps posed the theory that the most severe blow to Van Diest’s head—the one that fractured her skull—was caused by a fall off the slippery railroad tracks onto a pipe. She concluded Foerster was “scared,” “stupid” and “may have been involved in hurting her” but said Van Diest’s injuries were survivable.
“I say that her death was caused by leaving her beside the railroad tracks with no medical attention for two and a half hours,” Helps said. “That makes Mr. Foerster a coward, or intoxicated, or panicked, or maybe all three, but I say that doesn’t make him a murderer. I say this is manslaughter.”
Supreme Court Justice Peter Rogers will give his charge to the jury Friday morning, expecting to finish his instructions around noon.
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Jury sent home while lawyers discuss case - Infotel News
—This story was edited at 4:21 p.m. to add the defence's closing arguments.