DATE: 20041019
DOCKET: C39581
COURT OF APPEAL FOR ONTARIO
WEILER, ROSENBERG JJ.A. and PARDU J. (ad hoc)
B E T W E E N :
HER MAJESTY THE QUEEN
Patrick F. D. McCann
for the appellant
Respondent
- and -
YONGSHENG LIU
Scott C. Hutchison
for the respondent
Appellant
Heard: September 23, 2004
On appeal from the conviction entered by Justice Colin D. A. McKinnon of the Superior Court of Justice, sitting with a jury, dated December 7, 2002.
BY THE COURT:
[1] On February 29, 2000 at approximately 8 p.m., the appellant placed a call to 911. Emergency personnel responding to the call found the appellant’s wife, Fengzhi Huang, dead in the master bedroom of their home. The deceased had a number of contusions on her neck. The appellant’s neck had a number of scratch marks on it that were observed by emergency personnel. The appellant was seen to be suffering from hyperventilation and was taken to a hospital for assessment. After the assessment, he was arrested for the murder of his wife. An autopsy later revealed that the deceased died as a result of fatal neck compression. It was also noted that the deceased had injuries to her genitals. The appellant’s semen was found in the deceased’s vagina. A cloth was found under the bed in which the deceased was found. Chinese characters were written in the appellant’s blood on the cloth. The Crown’s position was that the appellant raped and murdered his wife.
[2] In his statements to the police and in his testimony at trial, the appellant stated he had had consensual sex with his wife and denied that he was the person who had murdered her. The Crown’s evidence was entirely circumstantial and the appellant contended that the evidence at least raised a reasonable doubt that he was the murderer. For example, the appellant told the emergency personnel, the police and a doctor that the marks on his neck and chest were the result of the application of a traditional Chinese medical remedy known as Gua Sha. Some of the appellant’s acquaintances supported his evidence. Expert evidence was also adduced that the vertical marks on the deceased’s neck were consistent with the application of Gua Sha, although not the horizontal marks on her neck.
[3] On December 7, 2002 a jury convicted the appellant of first-degree murder. The appellant appeals against conviction and raises the following grounds of appeal:
Should the verdict be set aside on the ground that it is unreasonable or cannot be supported by the evidence, especially the medical evidence respecting the state of rigor mortis and lividity in the body?
Did the trial judge err in admitting the opinion evidence of Dr. Parker that it was unlikely that the injuries to the deceased’s genitals had been caused by consensual sex?
Did the trial judge err in admitting the opinion evidence of Dr. Ben Seng Hoe with respect to the meaning of the cloth with Chinese characters written on it found under the bed?
Did the trial judge err in declining to grant the mistrial motion brought in relation to the inadmissible evidence given by Glen Glover, a person with whom the deceased had an extra-marital relationship?
[4] The fifth ground of appeal, namely, whether the trial judge should have instructed the jury that before using out-of-court statements as evidence of the appellant’s guilt, they had to find independence of fabrication, was properly abandoned at the hearing of this appeal.
[5] For the reasons that follow, we have concluded that the verdict was not unreasonable. The medical evidence that the appellant argues exonerates him does not bear the interpretation the appellant has placed on it. There existed evidence of motive as well as powerful circumstantial evidence that incriminated the appellant. Taken together, the evidence supports the conclusion that the deceased was killed sometime during the night of February 28th or early morning hours of February 29th when the appellant would have had exclusive opportunity to commit the crime and the verdict met the test in R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.). Further, the evidence of Drs. Parker and Hoe was properly admitted. The trial judge did not err in dismissing the motion for a mistrial. Accordingly, we would dismiss the appeal.
The reasonableness of the verdict
[6] It is well settled that the test to be applied in determining if a guilty verdict should be set aside as being unreasonable or one that cannot be supported by the evidence is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. The question is not whether, on the evidence, the verdict could possibly be rendered but rather, whether it reasonably could be reached. The application of the test requires this court to re-examine and re-weigh the evidence but the court cannot simply substitute its view for that of the jury. The words “acting judicially” mean that the jury must, among other things, apply the law, adjudicate only on the basis of the record, and arrive at a conclusion that does not conflict with the bulk of judicial experience: See Yebes v. The Queen (1987), 1987 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.); Regina v. R.W. (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.); R. v. Biniaris, supra. Furthermore where, as here, the identity of the perpetrator depends on circumstantial evidence the identity of the appellant as the killer must be the only logical and rational conclusion on the evidence: R. v. H. (R.T.) (2001), 2001 14562 (ON CA), 159 C.C.C. (3d) 180 (Ont. C.A.).
[7] In support of the appellant’s submission that the guilty verdict could not reasonably be reached on the evidence, the appellant relies on medical evidence as to the time of death that he submits shows the murder could not have occurred when he had exclusive opportunity to commit the crime. The appellant further submits that the evidence of motive and other circumstantial evidence relied on by the Crown can be explained away. Finally, the appellant submits that there was evidence another person could have committed the crime that, combined with the rest of the evidence, rendered the jury’s verdict unreasonable.
[8] Some elaboration on the bare outline of the facts above is necessary in order to deal with this ground of appeal. On the night of February 28, 2000 the deceased placed a call to Mr. Glover at 10:30 p.m. During the night the only occupants of the house were the deceased, the appellant and their seven-year-old daughter, Cindy. Before going downstairs for breakfast in the morning at about 7:30 a.m., the appellant and Cindy went into the bedroom and Cindy kissed her mother on the back of the head. Cindy testified that her mother did not move or say anything at that time. She appeared to be sleeping.
[9] During the night the appellant had the exclusive opportunity to commit the crime. The police found no sign of forced entry into the house and no other persons had a key to the house. On the other hand, if the deceased were alive at 7:30 a.m., the Crown concedes the verdict would be unreasonable as the appellant essentially had an alibi for the rest of the day. Thus, the time of death was important.
[10] The principal focus of the appellant’s submission is the evidence respecting rigor mortis and lividity in the body. The pathologist’s evidence as to the time of death placed the death as occurring between 12:30 a.m. on February 29th and 12:30 p.m. during that day.
[11] The appellant submits, however, that when examined closely, the medical evidence supports his submission that the deceased could not have been killed during the night and that she was killed in the morning after the appellant had left the house with his daughter. This submission is based on the state of rigor mortis and lividity in the body when it was examined by the coroner and then the pathologist. When the coroner saw the body at 11:10 on the evening of the 29th rigor mortis was present but not fixed. It takes 8 to 12 hours for rigor mortis to become fixed. After rigor mortis is fixed, it remains fixed for 12 hours and during the next 12 hours it dissipates. The appellant’s submission is that if the deceased was dead at 7:30 a.m., rigor mortis would have been fixed when the emergency personnel arrived at 9 p.m. and certainly before the coroner examined her.
[12] There is, however, no evidence as to whether rigor mortis was in the process of building or dissipating in the body at the time of the coroner’s examination and thus the evidence of rigor mortis does not assist the appellant.
[13] Lividity carries blood to pool in those portions of the body that are lowest. There was lividity on the front of the deceased with a spot on her chest that had been spared and that was consistent with how she was found lying in the bed. The lividity indicates that the body had been lying in the same position for many hours. When the coroner did his report at about 11 p.m. on February 29th, lividity was present but not fixed. It takes 12 to 18 hours on average for lividity to become fixed and so the appellant submits that the deceased was not dead at 7:30 a.m. on the 29th but was killed sometime after that.
[14] The evidence indicates that although the average length of time for lividity from onset to dissipation is 24 hours, it can be as much as 48 hours. The pathologist was never asked whether the evidence concerning the state of lividity in the body affected her estimate of the time of death. The only evidence before the jury was that the time of death occurred during a time frame that was consistent with the Crown’s position that the deceased was dead by 7:30 a.m. on February 29th. The pathologist’s evidence was further that rigor mortis and lividity were unreliable indicators to pinpoint the time of death. The medical testimony that the appellant argues exonerates him does not bear the interpretation the appellant has placed on it.
[15] In addition to evidence of motive there was powerful circumstantial evidence that incriminated the appellant.
There was evidence that the appellant’s marriage was in danger of rupturing and that this was a matter of considerable concern for him. The deceased had two romantic relationships outside the marriage that may or may not have been known to the appellant.
Assuming the evidence of Dr. Hoe was admissible, the blood letter found under the bed in which the victim was murdered contained the words, “Loyalty” and “Righteousness or Justice” written in Chinese characters. Such letters are known as Xueshu or blood letters. Dr. Ho rejected the suggestion that such a letter could reasonably be interpreted as a statement of love.
Assuming the evidence of Dr. Parker was admissible, that evidence indicated the injuries to the deceased’s vagina made it extremely unlikely that a consensual sex act took place.
The deceased was lying on the left side of the bed and her face was away from Cindy. Cindy testified that her mother did not wake up and did not come downstairs before she and her father left to take her to school. That night, Cindy found the deceased lying in the same position as in the morning, that is, on the left side of the bed with her back to the outside of the bed. If she was killed after 7:30 a.m. the killer would have had to position the body in the exact same way in which it was lying in the morning when Cindy kissed the back of the deceased’s head.
The deceased was in the habit of sleeping in her underwear. She was found in bed in her underwear suggesting she had never left her bed.
Normally the appellant left the house before 7 a.m. to go to work and his wife took Cindy to school and then caught the last express bus to work at 8:15 a.m. On February 29th, the appellant stayed in the house much later than was his custom and took Cindy to school. He made no effort to rouse his wife before leaving with Cindy even though this would likely mean she would miss or be late for work. Cindy did not know why her mother was not getting up that day or why her father was taking her to school.
Although the deceased had a 10 a.m. appointment at work and was a conscientious worker, she did not call in to work to say she would be late or absent.
Dr. Acharya, the forensic pathologist who performed the postmortem examination of the deceased’s body concluded that she had been strangled using a “soft ligature” such as the scarves found tied to the bed. The appellant testified that he and the deceased tied the scarves to the bed, albeit several weeks earlier. He could not explain why they had not removed the scarves.
[16] Taken together, the evidence supports the conclusion that the deceased was killed sometime during the night of February 28th or early morning of February 29th when the appellant would have had exclusive opportunity to commit the crime.
Admissibility of the evidence of Dr. Parker
[17] Dr. Jacqueline Parker testified that the injuries to the deceased’s genitalia were indicative of non-consensual sex. The appellant submits that: 1) her finding was not based on a standard that had gained acceptance in the scientific community; 2) her evidence was not relevant or necessary and its prejudicial effect outweighed its probative value; and 3) the expert’s testimony exceeded the boundaries of her expertise. Therefore, it should not have been admissible.
[18] Dr. Parker’s qualifications to provide expert evidence interpreting the physical injuries to the deceased’s vagina were accurately summarized by the trial judge in his reasons for ruling her evidence admissible:
Dr. Jacqueline Parker is a medical physician and surgeon who received her Bachelor’s degree in medicine and surgery at the University of Newcastle in England in 1981. She pursued post‑graduate work in general medicine and surgery at the University of Newcastle and at Dalhousie University Medical School in Canada, where she studied paediatrics, obstetrics and gynaecology. She was licensed by the Royal College of Physicians and Surgeons of Ontario in 1985.
Dr. Parker began working in the emergency department of the Riverside Hospital in Ottawa during 1985 on a part-time basis, with the remainder of her time spent in private practice.
In 1994 the Riverside Hospital opened a Sexual Assault Treatment Centre and from that time forward all sexual assault complaints in the city of Ottawa were brought to that centre for examination...
...Dr. Parker has been the physician liaison to the Sexual Assault Treatment Centre since its inception in 1994. As such, she performs routine examinations when nurse examiners [who perform most examinations] are unavailable or, alternatively, where her advice is sought for any specific or complicated examination.
Dr. Parker is certified in family medicine and emergency medicine. She attended a one day seminar at Women’s College Hospital Sexual Assault Centre at the time of setting up the Riverside Hospital Sexual Assault Treatment Centre in 1994.
In her family practice approximately 90 percent of Dr. Parker’s patients are women, and approximately 40 percent of the work she performs has a gynaecological focus. The Ottawa Hospital is a teaching hospital. Dr. Parker teaches all aspects of emergency medicine with a special emphasis on the sexual assault program. Since 1994, in her capacity as consultant physician to the Sexual Assault Treatment Program, she has conducted a number of seminars on the sexual assault examination process. She has taught continuing medical education sessions for physicians in the Ottawa Valley with respect to the subject of sexual assault treatment procedure. In April, 1999 Dr. Parker attended a conference entitled, “Controversies in Sexual Assault Care”, sponsored by the Ontario Network of Sexual Assault Treatment Centres.
The evidence establishes that Dr. Parker has done more sexual assault examinations than any other physician in Ottawa. She is acquainted with the rather limited body of published studies involving injuries resulting from sexual assault. She testified that the results of these studies mirrored her own experience. Dr. Parker herself has examined approximately 45 women over the past 15 years who have allegedly suffered from non‑consensual sex. She has examined hundreds of women complaining of pain following consensual sex, such as abdominal pain after intercourse, or cramping while pregnant, or from a variety of other complaints. She has examined the genitalia of thousands of women, having practised in her field for 17 years.
[19] Dr. Parker’s evidence was not ‘novel’ as the appellant contends. It was based on her extensive practical experience supplemented by the admittedly limited academic literature. The area that the expert testified in has been considered in other cases. See R. v. Steinbach (1998), 1998 15018 (BC CA), 129 C.C.C. (3d) 208 (B.C.C.A.) and R. v. Colas (2001), 2001 3538 (ON CA), 161 C.C.C. (3d) 335 (Ont. C.A.). In the latter case, this court held Dr. Parker was a qualified expert in the area of sexual assault-related injuries. Dr. Parker was qualified to give the evidence she gave and the opinion she expressed did not go beyond her expertise. The members of the jury could not be expected to have expertise concerning injuries to the vagina. Dr. Parker’s evidence was therefore necessary and would rebut the anticipated evidence of the appellant that he had consensual intercourse with the deceased and was not angry with her that evening.
The admissibility of Dr. Hoe’s evidence
[20] Dr. Ben Seng Hoe is an admitted expert in Chinese culture. Notwithstanding this, the appellant submits that his testimony as to the meaning of the characters written in the appellant’s blood on the cloth should not have been admitted. The appellant submits Dr. Hoe’s evidence was not clear, reliable or helpful in assisting the jury in determining what those characters meant.
[21] While Dr. Hoe had difficulty with English, a fair and full reading of his testimony makes his opinion on the meaning of the characters sufficiently clear to make it receivable in evidence. Dr. Hoe testified that the letter was indicative of a strong emotion of protest and a wish to seek justice. At the very least, Dr. Hoe was clear that the letter could not bear the interpretation that the appellant sought to place on it, namely, that it was a loving declaration of his own desire to end the quarrels he and his wife had had. Dr. Hoe’s testimony was necessary because otherwise the cultural significance of the letter would have been lost on a Canadian jury. It was for the jury to decide what weight to give to the opinion of Dr. Hoe.
The mistrial application
[22] Glen Glover gave evidence respecting his extra-marital relationship with the deceased. During his evidence, he stated before the jury that the deceased had told him that the appellant had wanted to get into a fight with the superintendent of his brother’s apartment building and his brother had to hold him back. The deceased had also said that the appellant was the type of person who never forgot and was determined to get back at people towards whom he felt angry. This hearsay evidence had not been ruled admissible. The appellant moved for a mistrial but the trial judge declined to grant the motion and instead instructed the jury to disregard what Glen Glover had just said.
[23] The appellant acknowledges that the decision of a trial judge to grant or refuse a motion for a mistrial is a matter of judicial discretion. The appellant also concedes that the trial judge delivered a strong limiting instruction to the jury concerning this portion of the evidence of Glen Glover. The appellant nevertheless submits that in light of the prejudicial nature of the evidence and the circumstantial case against the appellant, no limiting instruction could be effective in removing the potential prejudice to the appellant.
[24] The trial judge in this case carefully considered whether he was required to declare a mistrial or whether any harm to the appellant could be removed by a clear, sharp warning. A trial judge is in a privileged position to assess the possible impact of a hearsay statement to the jury and the effectiveness of a sharp warning: R. v. Khan (2000), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.) at para. 35. Having regard to the nature of the inadmissible evidence, the warning that the trial judge gave to the jury, and the deference owed to the position of the trial judge we would not give effect to this ground of appeal.
[25] We would dismiss the appeal.
RELEASED: October 19, 2004
“KMW”
“Karen M. Weiler J.A.”
“Marc Rosenberg J.A.”
“G. Pardu J. (ad hoc)”