Her Majesty the Queen v. Savojipour [Indexed as: R. v. Savojipour]
79 O.R. (3d) 418
[2006] O.J. No. 469
Docket: C34438
Court of Appeal for Ontario,
Labrosse, Weiler and MacFarland JJ.A.
February 9, 2006
Criminal law -- Evidence -- Exclusion -- Trial fairness -- Trial judge at first degree murder trial excluding statements made by accused on Charter grounds as rendering trial unfair and also excluding derivative evidence of finding of deceased's head -- Defence counsel referring to head while questioning pathologist -- Trial judge not erring in reversing earlier ruling -- Conduct of defence giving rise to material change in circumstances that justified reversal of earlier ruling -- Admission of evidence of head necessary to restore fairness of trial process -- Trial judge entitled to conclude that perception that Crown was suppressing relevant evidence could not be cured through judicial instruction.
Criminal law -- Trial -- Charge to jury -- Post-offence conduct -- Accused cutting up deceased's body and disposing of parts -- Trial judge correctly did not instruct jury that post- offence conduct had no probative value -- Evidence could reasonably support inference of guilt -- Trial judge adequately outlining to jury other explanations for accused's conduct.
Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge referring to "timid juror" in explaining concept of reasonable doubt and using words "honest" and "fair" in connection with word "doubt" -- Flaws in charge not fatal -- Jury would not have been under any misapprehension as to high burden that Crown had to meet and what constituted reasonable doubt and would not have been under impression that only courageous jurors would convict.
Criminal law -- Trial -- Cross-examination by defence -- Crown witness reporting two threats to police shortly before testified -- Defence seeking to cross-examine witness to suggest she was lying about threats and that she knew more about drug dealing which defence asserted would be helpful to accused -- Trial judge did not err in ruling that defence limited to credibility related cross-examination of witness suggesting that she concocted threats but ruled that as threats collateral defence could not adduce evidence to contradict witness' answers -- Trial judge ruling evidence regarding the threats collateral to issues before jury -- Defence making tactical choice not to cross-examine witness regarding threats -- Ruling did not interfere with accused's right to cross- examine -- Appeal from conviction dismissed.
The accused was convicted of first degree murder. The theory of the Crown was that the accused anally raped and killed the 16-year-old son of his estranged lover, A, in an act of revenge, out of anger and in retaliation for having been humiliated and spurned by her a few days earlier. The deceased had been struck over the head multiple times and repeatedly stabbed in the chest. The accused defleshed and dismembered the body and secreted body parts in various places. He admitted that he dismembered the body, and claimed that he was forced to rape the deceased by two enforcers in a dispute over stolen opium, but that he left before the deceased was murdered, and then disposed of the body when he returned because he feared that he would be blamed for the murder. He told the [page419] police that he had buried the deceased's head and arms in a nearby ravine. The Crown wanted to lead forensic evidence relating to the head because the blunt force injuries on the deceased's scalp were consistent with a hammer in the accused's possession. The trial judge ruled that certain statements made by the accused, including his agreement to disclose the location where he had buried the head and arms of the deceased, were inadmissible on Canadian Charter of Rights and Freedoms grounds. He was not satisfied that the body parts would have been discovered without the accused's assistance. The discovery of the severed head and arms was ruled inadmissible. However, while questioning a forensic pathologist, defence counsel referred to the victim's head. The Crown objected on the basis that there was a real danger that the jury would surmise that the Crown had concealed material evidence. The trial judge agreed, holding that the serious prejudice to the Crown's position would render the trial unfair if it were not rectified. He concluded that the conduct of the defence required a reversal of the earlier ruling. The accused appealed his conviction.
Held, the appeal should be dismissed.
The trial judge did not err in reversing the earlier ruling that forbade counsel from adducing evidence about the examination of the head. The conduct of the defence gave rise to a material change in circumstances that justified a reversal of the earlier ruling. The evidence that had initially been excluded in order to preserve the fairness of the trial was now admitted to restore the fairness of the trial process. The trial judge was entitled to conclude that the perception that the Crown was suppressing relevant evidence could not be cured through judicial instruction.
It would have been inappropriate for the trial judge to leave the jury with a "no probative value" instruction on the accused's post-offence conduct as it could not be said that the post-offence conduct was not reasonably capable of supporting an inference of guilt. The trial judge provided the jury with an adequate summary of the other explanations offered by the accused with respect to the post-offence conduct evidence, and specifically instructed the jury to assess the explanation given by the accused. To have referred to other explanations not given in evidence by the accused could have seriously undermined the evidence of the accused and invited the jury to engage in speculation.
At about the time that A was due to give her evidence, she reported two threatening incidents to the police. The defence wanted to explore those incidents to demonstrate that A was lying, and also that she might know more than she was letting on about the drug dealing, which might assist the accused whether her evidence was fabricated or not. The trial judge ruled that this evidence was collateral to the real and substantial issue in the case, and that the pursuit of the proposed line of cross-examination would not further the resolution of the issues in the case but might serve to distract and confuse the jury while needlessly prolonging the trial. The trial judge was prepared to allow defence counsel to cross-examine A to the effect that she had concocted the threats because it bore on her credibility. Defence counsel made a tactical decision not to pursue any cross-examination at all if the issue was deemed collateral and the witness could not be contradicted. The ruling did not interfere with the accused's right to cross-examination. There was no error in the trial judge's ruling.
In instructing the jury on reasonable doubt, the trial judge made an unfortunate reference to the "timid juror". However, the jury would not have been under the impression that only courageous jurors would convict. The trial judge also used the words "honest" and "fair" in connection with the word "doubt". While [page420] those qualifying words are to be avoided, the trial judge gave the jury a proper understanding of what would constitute a reasonable doubt, making it clear that there was a difference between a reasonable doubt and a speculative doubt. When the charge on reasonable doubt was read as a whole, the jury would not have been under any misapprehension as to the high burden of proof that the Crown had to meet and what constituted a reasonable doubt. Nor would the charge have left the jury with the impression that if they acquitted the accused they would be avoiding their duty.
APPEAL from the conviction for first degree murder entered by Then J. of the Superior Court of Justice, sitting with a jury, dated September 26, 1999.
Cases referred to R. v. Avetysan, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57, 2000 SCC 56, 95 Nfld. & P.E.I.R. 338, 192 D.L.R. (4th) 596, 262 N.R. 96, 586 A.P.R. 338, 149 C.C.C. (3d) 77, 38 C.R. (5th) 26 (sub nom. R. v. Avetysan (A.)); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub nom. R. v. O'Connor (No. 2)); R. v. Thurston, 2001 6630 (ON CA), [2001] O.J. No. 1401, 143 O.A.C. 212, 43 C.R. (5th) 153, 49 W.C.B. (2d) 479 (C.A.); R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, 39 O.R. (3d) 223n, 161 D.L.R. (4th) 590, 227 N.R. 326, 125 C.C.C. (3d) 385, 16 C.R. (5th) 199 Statutes referred to Canadian Charter of Rights and Freedoms
Renee Pomerance and Roger Shallow, for respondent. Brian Snell, for appellant.
[1] BY THE COURT:-- Following a five-and-one-half-month trial before Then J. and a jury, the appellant was convicted of first degree murder. He appeals his conviction on the grounds that the trial judge erred in rulings made during the course of the trial and alleged errors in his charge to the jury. Following oral argument, we dismissed the appeal with reasons to follow. These are our reasons.
[2] The theory of the Crown was that the appellant anally raped and killed Amin Sajadin ("Amin"), the 16-year-old son of his estranged lover, Akram Sajadin ("Akram"), in an act of revenge, out of anger and in retaliation for having been humiliated and spurned by her a few days earlier. In addition to having been raped, Amin had been struck over the head multiple times and repeatedly fatally stabbed in the chest. Over a period of a few days, the appellant, with experience as a butcher, de-fleshed and dismembered the body, and secreted body parts in various places to cover up his crime. During this time, when Akram, distraught, [page421] called the appellant looking for Amin, he pretended to comfort her and to help her to look for her son. The smell of decaying flesh in the apartment led the appellant's roommates to parts of the body and they called the police. The Crown presented circumstantial evidence against the appellant, which included motive, exclusive opportunity and a cogent body of post-offence conduct pointing to the appellant as the killer.
[3] The theory of the defence was that the appellant had a close but platonic relationship with Amin. The appellant claimed that he was helping Akram to sell opium brought into the country by her husband. Persons alleged by the appellant to be connected with the Zarifian family stole the opium from him and threatened him. Later, two enforcers acting for the thieves complained to him about the quality of the drugs, as well as the sale of opium in their territory and slashed his hand with a knife. They were also upset because Akram had threatened to go to the police. On the date of the murder, these two enforcers came to his apartment with Amin, demanding more opium. They raped Amin, and forced the appellant to do the same thing. He claimed that he escaped from his apartment in order to go and protect Akram, as he feared that the assailants would go to her for opium. When he returned to his apartment, he found Amin lying dead in the bathtub. Afraid that he would be blamed for the murder, the appellant decided to dispose of the body and cleaned up his apartment to remove evidence of the crime.
[4] Crown counsel attacked the appellant's story by pointing out a number of inconsistencies, contradictions, and gaps in logic, common sense and human experience. Only the appellant's semen was found in the body of the victim.
[5] Although there was some evidence that the appellant and Akram had involvement with opium, there was no evidence to indicate any connection between the drug-related activities and the murder, save for the appellant's account of the events.
[6] The appellant submits that the trial judge was in error with respect to the following grounds of appeal.
(1) The Admission of Derivative Evidence Relating to the Head of the Victim
[7] The appellant told the police that he had buried the head and arms of the victim in a nearby ravine. The Crown wanted to lead forensic evidence relating to the head because the blunt force injuries on the scalp of the victim were consistent with a hammer in the possession of the appellant. Following a voir dire, the trial judge ruled that certain statements made by the appellant [page422] were inadmissible on Canadian Charter of Rights and Freedoms grounds. These included the appellant's agreement to disclose the location where he had buried the head and arms of the victim. The trial judge held that this evidence, which resulted from the conscription of the appellant against himself, would inevitably taint the fairness of the trial as he was not satisfied that these body parts would have been discovered without the appellant's assistance. The discovery of the severed head and arms was therefore inadmissible. The trial judge issued clear directions to counsel that neither the discovery of the head nor its condition was to be used to advance the case for either side.
[8] On two occasions during the cross-examination of Akram, defence counsel made references to the appellant's statements that had earlier been excluded. Crown counsel objected to the references to the excluded statements and put the defence counsel on notice that, if this practice continued, he would seek a reconsideration of the ruling.
[9] When the forensic pathologist took the stand, counsel had to be careful on how to introduce his evidence without referring to the head of the victim. The doctor's report was edited for presentation to the jury and the doctor was instructed not to refer to the head or its relevance to the determination of the gender of the body. The proceedings seemed to proceed satisfactorily in accordance with the ruling until defence counsel suggested to the doctor that he had taken oral swabs. The doctor alertly understood the difficulty with the question and asked directions from the trial judge, who directed defence counsel to continue without an answer to the question.
[10] This was the first clear reference to the victim's head. Given the mention of the oral swabs and the leading nature of the question, it could not have escaped the jury that the head had been located and been subject to forensic examination. The Crown raised "vociferous" objection and submitted that it had been so seriously prejudiced that a mistrial might be required.
[11] According to the Crown, the defence question clearly indicated that the head had been examined by the pathologist and it created a real danger that the jury would surmise that the Crown had concealed material evidence. The transgression was all the more serious because the appellant was expected to testify that Amin was struck over the head by two intruders with hammer-like weapons depicted in a diagram prepared by the appellant. The jury would wonder why the Crown had not tested the head or, alternatively, assume from the absence of evidence that the Crown could not rebut the appellant's assertion. In fact, the Crown had wanted to lead the forensic evidence to the effect that [page423] the pattern of injuries was consistent with the head of a hammer found in the appellant's apartment but had been prevented from doing so by the trial judge's ruling. The question concerning oral swabs suggested that the defence wanted material evidence placed before the jury and the Crown did not. The Crown submitted that this sort of prejudice could not be cured through judicial instruction.
[12] Defence counsel acknowledged that he had made a mistake and his excuse of inadvertence was accepted. He suggested that the error could be cured by a simple instruction telling the jurors not to speculate on the absence of evidence.
[13] The trial judge essentially agreed with the Crown's position. He was of "the view that the serious prejudice to the Crown's position would render the trial unfair if it were not rectified". He concluded that the conduct of the defence required a reversal of the earlier ruling that forbade counsel from adducing evidence about the examination of the head.
[14] We are not persuaded that the trial judge was in error with respect to this ground of appeal.
[15] First, he was in the best position to assess the impact of the error in the atmosphere of the trial. In our view, the conduct of the defence gave rise to a material change in circumstances that justified a reversal of the earlier ruling. See R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1. The evidence that had initially been excluded in order to preserve the fairness of the trial was now admitted to restore the fairness of the trial process. There was clearly a risk that the jury might be misled or presented with a distorted picture. The argument that the "sins" of defence counsel were improperly visited upon the client is not valid. Absent a finding of ineffective assistance of counsel, which is not suggested here, the client is fixed with the steps taken in furtherance of his defence.
[16] Second, we do not propose to second guess the trial judge in concluding that the perception that the Crown was suppressing relevant evidence could not be cured through judicial instruction.
[17] The new ruling made it possible for the jury to know that the appellant had led the police to the location of the head, a matter of some importance to the defence as it did not want the jury to think that the appellant had hidden the head and thus prevented the victim's family from holding a proper burial. Furthermore, the appellant in his testimony stated that when he returned to his apartment he saw the hammer in his apartment and that there was blood on it. This left the possibility that the assailants had used the hammer while the appellant was absent [page424] from the apartment. The matter was clearly and fairly dealt with by the trial judge in his charge. Overall, trial fairness was restored and the appellant was not prejudiced by the admission of the head of the victim into evidence.
[18] We would not give effect to this ground of appeal.
(2) The Trial Judge Erred in his Instructions to the Jury on Post-Offence Conduct
[19] In his factum, the appellant submitted that the trial judge had erred in not including a "no probative value" direction and that the instructions to the jury regarding the use it could make of the post-offence conduct were inadequate and did not go far enough. In particular, the appellant alleged that the instructions failed to outline to the jury other explanations for the appellant's conduct. In oral argument, counsel abandoned the "no probative value" portion of his argument.
[20] In our view, in the circumstances of this case, it would have been inappropriate to leave the jury with a no probative value instruction as it cannot be said that the post-offence conduct was not reasonably capable of supporting an inference of guilt. See R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, 125 C.C.C. (3d) 385. See also R. v. Thurston, 2001 6630 (ON CA), [2001] O.J. No. 1401, 143 O.A.C. 212 (C.A.), where this court found a no probative value instruction inappropriate when an accused admitted to being an accessory to the murder but denied any involvement in the murder itself.
[21] As to the second part of the appellant's submission, the trial judge provided an adequate summary of the other explanations offered by the appellant with respect to the post- offence conduct evidence and specifically instructed the jury to assess the explanation given by the appellant. To have referred to other explanations not given in evidence by the appellant could have seriously undermined the evidence of the appellant and invited the jury to engage in speculation.
[22] The appellant also submits that the instructions respecting post-offence conduct were inadequate given the inflammatory nature of the conduct which was supported by graphic photos. We do not agree. We note that experienced counsel raised no objection to the charge to the jury on this point.
(3) The Trial Judge Erred by Ruling that the Threats Reported by Akram were Collateral to the Issues at Trial
[23] At about the time that Akram was due to give her evidence, she reported two threatening incidents to the police. One [page425] involved a threatening letter and the other involved an allegation that an intruder had broken into her home, assaulted her and threatened her. The police investigated these matters, had been unable to draw any conclusion about the incidents and the investigation was still open.
[24] The defence, mainly, wanted to explore these incidents to demonstrate that the witness was lying and later expanded on the purpose by submitting that she might know more that she was letting on about the drug dealing and that such evidence might assist the appellant, whether it was fabricated or not.
[25] It was the position of the Crown that this evidence was collateral, wholly irrelevant and utterly lacking in probative value. There was no way of knowing if these incidents had been instigated by the appellant, by other persons alleged by the appellants to by involved in drugs, by some other unknown person, or fabricated by Akram, although the letter had been turned over to the police. Absent any evidence to relate the incidents to some relevant theory, they could not meet the test of relevance or materiality.
[26] The trial judge agreed with the Crown that the evidence was collateral to the real and substantial issue in the case. In his view, the pursuit of the proposed line of cross- examination would not further the resolution of the issues in the case but may serve to distract and confuse the jury while needlessly prolonging the trial. Nonetheless, the trial judge was prepared to allow defence counsel to cross-examine Akram to the effect that she had concocted the threats because it bore on her credibility. Counsel made a tactical decision not to pursue any cross-examination at all if the issue was deemed collateral and the witness could not be contradicted.
[27] We do not agree with the submission that the ruling interfered with the appellant's right to cross-examination, particularly having regard to counsel's decision not to pursue the matter to the extent permitted.
[28] We see no error in the ruling of the trial judge on this ground of appeal.
(4) The Trial Judge Erred in his Instruction on Reasonable Doubt
[29] In explaining the concept of reasonable doubt, the trial [judge] made reference to the "timid juror". While the reference was unfortunate, we do not think that in this case, the jury would have been under the impression that only courageous jurors would convict. The trial judge also used the words "honest" and [page426] "fair" in connection with the word doubt. While these qualifying words are to be avoided, the trial judge gave the jury a proper understanding of what would constitute a reasonable doubt, making it clear that there was a difference between a reasonable doubt and a speculative doubt. He explained that the Crown must prove the essential elements of the offence beyond reasonable doubt and provided a proper W. (D.) instruction. Furthermore, the trial judge's instruction is in substantial compliance with the requirements set out in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 C.C.C. (3d) 1 and R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57, 149 C.C.C. (3d) 77.
[30] When read as [a] whole, the jury would not have been under any misapprehension as to the high burden of proof that the Crown had to meet and what constituted a reasonable doubt. Nor would the charge have left the jury with the impression that if they acquitted they would be avoiding their duty.
(5) The Trial Judge Erred in Failing to Adequately Charge the Jury with Respect to the Deficiencies in the Police Investigation
[31] The lack of forensic evidence respecting the alleged assailants was a recurring theme for the appellant at trial. The appellant wanted the trial judge to tell the jury not to draw an adverse inference against the appellant due to its absence.
[32] It was made clear to the jury that there was no obligation on the accused to prove anything. The appellant's position regarding the absence of evidence and any alleged deficits in the police investigation respecting the alleged assailants was fully canvassed by defence counsel during cross- examination and the respective positions of counsel on this point were fairly set out to the jury.
[33] We see no merit to this last ground of appeal.
[34] The ground of appeal relating to recent fabrication raised in the appellant's factum was abandoned.
Disposition
[35] In closing, it is our view that the Crown presented a very strong circumstantial case against the appellant consisting of the evidence of motive, exclusive opportunity and post-offence conduct pointing to the appellant as the killer. Together with the inconsistencies, contradictions and improbabilities in the appellant's story, the Crown's case was overwhelming.
[36] Accordingly, we would dismiss the appeal.
Appeal dismissed.
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