Pictou Supreme Court Justice Nick Scaravelli gave the jury a 2 ½-hour charge Monday morning and officially told them to begin deliberating the evidence a little after 2 p.m.
They will have more than 45 exhibits to consider as well as testimony from more than 35 witnesses in the trial that began with jury selection on Jan. 6. Falconer is charged with first-degree murder in the death of 19-year-old Amber Kirwan who went missing Oct. 9, 2011, Her remains were found in Heathbell, Pictou County, on Nov. 5, 2011.
Scaravelli told the jury during the morning's instruction there are three possible verdicts it can consider when deliberating the evidence – guilty of first-degree murder, guilty of second-degree murder or not guilty.
"When you go into the jury room, you must consult with each other, based on facts when you find them," said the justice. "You have several things provided for you during deliberations. Exhibits will be sent to the jury room and you may look at them in any order you wish."
In order to be convicted of first-degree murder, the jury must find that Kirwan was kidnapped and forcibly confined by Falconer, which led to her death in a series of events. If they can't determine she was kidnapped or forcibly confined, then they can consider second-degree murder if they find that Falconer caused Kirwan's death. If there is any reasonable doubt with either charge, they must find the accused not guilty.
Scaravelli cautioned the defence to use common sense when deliberating the evidence and not to be afraid of voicing an opinion.
"Deciding the facts is your job, not mine," he said. "The evidence doesn't have to answer every question raised in the case."
He told the jury members to not pay any attention to any comments they might have heard in the past or any media reports they might have heard while not sequestered.
He told the jury they were welcome to ask questions or have answers played back if they needed clarification on the issue. He also stressed the onus is on the Crown to prove its case and the defence does not have to present evidence.
"Any reasonable doubt is not far-fetched doubt," Scaravelli said. "It is doubt based on reason and common sense. It logically arises from the evidence or lack of evidence. It is not enough for you to believe that he is probably guilty. Probable guilt is not guilt beyond a reasonable doubt. However, it is difficult to prove anything beyond absolute certainty."
Scaravelli reviewed the evidence and summarized both the Crown and defence theories. He said the Crown believes that at 1:45 a.m. on Oct. 9, Kirwan started walking to Big Al’s and was overcome by Falconer in downtown New Glasgow. He bound her hands with duct tape and forced her into his vehicle after which he took her to the Hardwood Hill camper. Once there, the Crown contends, he forced Kirwan to digest Tylenol 3 and cut off Kirwan's clothing and bound her wrists with her own shirt, sweater and towel.
The Crown says Falconer wore a black tank top that night and killed her by stabbing her. However, the stabbing didn't occur in the camper, but between the camper and the burial site in Heathbell.
Scaravelli said the defence believes the Crown has not proven its case beyond a reasonable doubt. The text messages read in court are not consistent and Falconer could have sent texts in areas not related to her disappearance. The defence also says that he might have worn the tank top in question at a time other than when Kirwan was being stabbed and someone else could have placed the bag with the tank top in Falconer's car since it, was unsecured.
The defence also points out that DNA samples from another man were found on the knot in the towel around Kirwan's wrists at the grave site and there was DNA from another person, who was not Kirwan or Falconer, on the tank top.
The jury deliberated throughout the afternoon without reaching a verdict. Members were sequestered at a local hotel and will be brought back to the justice complex Tuesday to continue their deliberations.