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The judge who convicted Lisa Batstone of second-degree murder for suffocating her daughter with a plastic bag in December 2014 found that all of the South Surrey mother’s actions and words after the killing support the conclusion that she had intended to cause eight-year-old Teagan’s death that morning.
And that finding, defence counsel Rebecca McConchie submitted in B.C. Court of Appeal Tuesday (March 30), was a mistake.
“It’s hard to see how the judge could have reached this conclusion,” McConchie told Chief Justice Robert Bauman and Justices Mary Saunders and Richard Goepel, regarding the judgment rendered against Batstone by Justice Catherine Murray on March 22, 2019.
“She didn’t explain how or why she came to this exceedingly unusual conclusion.”
READ MORE: South Surrey mother guilty of second-degree murder in death of daughter
Batstone, who killed her daughter in the early morning hours of Dec. 20, 2014, is appealing both her conviction and her sentence. She was charged with second-degree murder after Teagan’s body was found in the trunk of a car in a cul-de-sac off Crescent Road, and following trial, was sentenced to 15 years before she could apply for release.
READ MORE: South Surrey mother appeals murder conviction, sentence
The only issue at trial was whether Batstone had intended to kill her daughter.
Prosecutors contended that evidence made it clear that this was indeed the case. They pointed to the fact that Batstone never called 911, and that she left notes that read, “I’m so sorry” and “you win Gabe, you broke me,” as well as a four-page letter with phrases that included, “I couldn’t imagine leaving here and leaving her to him.”
Defence counsel had argued that the mother’s level of intoxication at the time she killed Teagan – along with borderline personality traits, significant levels of depression and a “cloud of stressors” – may have limited her ability to gauge the consequences of her actions.
Murray, however, said she was “not convinced” that Batstone’s mental health was the reason for the murder, rather, that “Teagan was the pawn in her mother’s revenge” against Teagan’s father, Gabe Batstone, for the collapse of their marriage.
She found the mother’s actions were “purposeful and goal-driven,” and that “whatever the motive… the only possible inference is that her intent was to end Teagan’s life.”
In the Court of Appeal hearing on Tuesday – held virtually – McConchie said Murray reached her conclusion by filling gaps in the evidence through speculation. Murray determined that Batstone had purposefully chosen a thick plastic bag to use on Teagan, that she watched her daughter die for four to five minutes, and in what order Batstone took the steps that she did following Teagan’s death, McConchie said in citing examples to support her argument.
However, “not only was there no evidence from which the trial judge could have made the findings about the order of events… her findings were actually inconsistent with the evidence that did exist,” McConchie said.
McConchie described Murray’s determination that Batstone’s post-offence conduct led to only one conclusion as “significantly prejudiced.”
Co-counsel Eric Gottardi told the court that his client is alleging “a number of errors which we say were central to the issue of intent.” The trial judge misapprehended important evidence, then relied on her findings of fact to dismiss the appellant’s defences, he said. As well, the judge erred in her approach to evidence of Batstone’s post-offence conduct.
“We say the appellant did not receive a fair trial,” Gottardi said, noting his client was described by many as being a loving and doting parent prior to killing Teagan.
Mark Levitz, representing the Crown, agreed that the judge had misapprehended one piece of evidence – regarding expert testimony around how long it took for Teagan to die – but said it did not go to the core of her reasoning.
Remove that evidence and “her reasons for convicting the appellant would still be on steady ground,” Levitz said.
Levitz disagreed that the trial judge found everything that Batstone did after killing Teagan to be relevant in determining intent.
She focused on emails and letters that Batstone wrote, as well as statements she made to police and medical personnel, that had a “constant” theme of wanting to end Teagan’s suffering, he said. At no point in any of those did Batstone indicate that she didn’t realize smothering her daughter would end her life, he noted.
If somehow Batstone didn’t understand she was killing Teagan, it is “inconceivable” that she didn’t seek help the moment that reality hit, Levitz said.
“It’s reasonable to assume that a loving mother who didn’t intend to cause death would immediately seek help (upon realizing she had). And she never did.”
Levitz said the defence’s evidence “at its highest fell short of raising a reasonable doubt of intent.”
The hearing concluded Tuesday afternoon. The court reserved judgment.
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