The lawyer for convicted murderer Mukhtiar Panghali maintains there is no direct evidence his client strangled his pregnant wife to death in 2006.
But Michael Tammen suggested Friday that the B.C. Court of Appeal could either acquit his client and order a new trial, or substitute his second-degree murder conviction for the lesser charge of manslaughter.
Panghali was convicted in February 2011 of second-degree murder and interfering with a dead body in the death of 31-year-old Manjit Panghali.
Manjit's charred remains were found in South Delta five days after she went missing after attending a yoga class on Oct. 18, 2006. The cause of death was strangulation and her husband was charged five months later.
Panghali's conviction appeal was heard by a trio of justices in Vancouver on Friday.
Tammen told the Appeal Court that Panghali being found guilty of murder versus manslaughter was unreasonable because there was insufficient evidence to prove there was intent to kill.
The defence lawyer disputed the trial judge's (B.C. Supreme Court Justice Heather Holmes) determination that burning the body pointed to the perpetrator's intent.
There are a number of reasons someone might seek to conceal or destroy a body, Tammen argued, including sheer panic at having killed someone. The average person, he said, doesn't know the difference between manslaughter and second-degree murder and only knows that "killing is wrong."
Tammen also said evidence about the duration and force of the strangulation was insufficient, putting into question whether the death was intended or accidental.
Trial testimony from a forensic pathologist pointed to a broken hyoid bone in the neck, but the court heard it was a common injury in manual strangulation. As well, Tammen said, the pathologist was unable to determine the exact duration of the strangulation – only saying it was "more than fleeting" and likely lasted several seconds.
Appeal Court Justice David Frankel countered that the doctor testified it would take a "minimum" of 15 seconds to render someone unconscious, which is "not that short a period of time."
Tammen argued 15 to 20 seconds was not a significant amount of time in the context.
The trial judge also erred, Tammen said, in admitting evidence from the pathologist about a vaginal hematoma discovered on Manjit's body.
Even though the trial judge chose in the end to give the hematoma evidence no weight, it was "so prejudicial and so lacking" that it should not have been allowed at all, Tammen said.
Tammen said Panghali may have, hypothetically, testified in his own defence, but his word would have been pitted against expert evidence. Under those circumstances, said Tammen, the Crown could have cross-examined his Panghali about a possible sexual assault and there was the risk he'd be left open to the more serious charge of first-degree murder.
Panghali was not present at the appeal hearing and is currently serving an automatic life sentence with no possibility of parole for another 14 years.