ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10677
DATE: 2012/03/12
BETWEEN:
HER MAJESTY THE QUEEN v. DAVID HATCH
J. Spangenberg, for the Crown
D. Crawford and M. Hilliard, for the Accused
HEARD: February 27, 28, 29, March 1 & 2, 2012
RULING
rADY J.
[1] The Crown seeks to rely on certain post offence conduct of Mr. Hatch in support of its contention that Mr. Hatch planned to kill Ms. Roberts. The Crown’s theory is that Mr. Hatch had sexual intercourse with Ms. Roberts after her death. In that regard, the Crown relies on the following evidence:
During the search incident to arrest, Mr. Hatch spontaneously disclosed to Detectives Travis and Cook that he and the deceased had had consensual sex, before leaving the hotel to purchase concert tickets.
Ms. Roberts arrived at the Radisson Hotel at 8:40 p.m. She used an ATM located in the hotel restaurant to withdraw cash at 8:57 p.m.
She and Mr. Hatch left the hotel to purchase the concert tickets and returned some time after 9:27 p.m. when Ms. Roberts had called Mr. Mifflin to say she would be home soon.
After Ms. Roberts was shot, Mr. Hatch carried her body to the bedroom where he undressed her and laid her on the bed. When she was found, her legs were spread apart.
Mr. Hatch’s semen was found in Ms. Roberts’ vagina but none was detected on the crotch of her underwear or jeans. A witness from the Centre for Forensic Science is expected to testify that if sexual intercourse had occurred prior to leaving the hotel, one would expect to find semen on Ms. Robert’s underwear or jeans. [^1]
There is a hand print on the bed in which Ms. Roberts’ body was found, which might suggest Mr. Hatch was on top of Ms. Roberts.
In his statement to Detective Travis, Mr. Hatch admitted to cuddling with Ms. Roberts after her death. He did not deny having intercourse post mortem but rather says he does not remember that happening.
Mr. Hatch also said that he had contemplated killing Ms. Roberts before they left the hotel to purchase the concert tickets but was unable to bring himself to do so. The Crown submits that Mr. Hatch would not have been in the frame of mind to have sexual intercourse in the circumstances.
A computer seized by police at Mr. Hatch’s place of employment and used by him contains two web searches using the following term: “would a dead woman’s vagina be tight”.
[2] The Crown cannot prove that sexual intercourse occurred post mortem. Mr. Hatch is not charged with causing an indignity to a dead body. Nevertheless, taken cumulatively, the Crown submits that the evidence supports the inference that sexual intercourse occurred post mortem and, when considered with the computer searches, the evidence is probative of planning and deliberation.
[3] In R. v. Poitras , 2002 23583 (ON CA) , [2002] O.J. No. 25 (C.A.) the Court of Appeal upheld the trial judge’s determination that the accused’s conduct after the offence was capable of supporting the inference that the murder was planned and deliberate. Justice Doherty, writing for the court, made the following observation:
The relevance of after-the-fact conduct to the issue of whether a murder was planned and deliberate depends on the circumstances of the particular case: R. v. MacKinnon (1999), 1999 1723 (ON CA) , 43 O.R. (3d) 378 , 132 C.C.C. (3d) 545 (Ont. C.A.) . If as a matter of common sense and human experience, the after-the-fact conduct considered in combination with the rest of the evidence is reasonably capable of supporting the inference that the murder was planned and deliberate, then the evidence is relevant to that issue. For example, evidence that the appellant dismembered the body and hid parts of the body in various locations could support the inference that the appellant did not want the body discovered and wanted people to think that Mr. Blake had left for Timmins. This would allow the appellant and Ms. Nelson to immediately assume cohabitation without attracting suspicion. If the jury drew that inference, it would go a long way toward a finding that the murder was planned and deliberate.
[4] On the other hand, the danger posed by the use of post offence conduct has been discussed in many cases, including the recent Supreme Court of Canada decision in R. v. White , 2011 SCC 13 , [2011] 1 S.C.R. 433 . Justice Rothstein, writing for the majority, made these observations:
23 That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carries with it a substantial risk of jury error ( Gudmondson v. The King (1933), 1933 415 (SCC) , 60 C.C.C. 332 (S.C.C.) ). Jurors may be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” without giving proper consideration to alternate explanations for the conduct in question.
25 One instance in which the risk of jury error becomes especially acute arises when the accused has confessed to engaging in some form of criminal conduct related to the crime of which he stands accused. In such cases, post-offence conduct that supports an inference that the accused had a “guilty conscience” may be of little or no use in determining his level of culpability.
[5] In R. v. Hall , 2010 ONCA 724 , [2010] O.J. No. 4603 (C.A.) the Court of Appeal had occasion to discuss post offence conduct and how a trial judge should instruct a jury with respect to its use. The court made the following comments:
The trial judge must provide a clear cautionary instruction to the jury against drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct. The trial judge must also instruct the jury that “they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations”: White , at para. 57
As noted by the court at para. 21, post-offence conduct evidence is like other pieces of circumstantial evidence that may be subject to competing interpretations. To meet the circumstantial evidence test, “[it] must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.”
However, it is unlike other pieces of circumstantial evidence in a very significant way. Other circumstantial evidence, such as the classic example of wet ground in the morning, need only be consistent with a conclusion that a certain fact occurred, e.g., that it rained overnight. That fact might be an important piece of the Crown’s case. But it is just one piece that, together with others, may prove guilt beyond a reasonable doubt. The difference with post-offence conduct circumstantial evidence is that, to be evidence that meets the circumstantial evidence test, it must be consistent only with the ultimate conclusion of guilt. It is the requirement of meeting the test for circumstantial evidence that creates the impression of a tautological analytical exercise by the jury. That is why it is so important for the jury to assess the post-offence conduct only as part of its ultimate assessment in weighing all of the evidence at the stage of determining whether guilt has been proved beyond a reasonable doubt, rather than treating it as a separate category.
[6] In this case, the evidence that the Crown seeks to adduce is relevant to the issue of planning and deliberation. However, it is highly prejudicial to the accused. It suggests completely abhorrent behaviour and there is a real risk that the jury might jump to an inference of guilt without giving proper consideration to the possibility that Mr. Hatch and Ms. Roberts had sexual intercourse at another time that night.
[7] The evidence is not “consistent only with the ultimate conclusion of guilt” ( R. v. Hall ). Given the potentially inflammatory nature of the evidence and the danger that it might be misused by the jury, I would not permit the Crown to lead the proposed evidence from Ms. Kafarowski, a forensic biologist from the Centre For Forensic Science, respecting the absence of semen on Ms. Roberts’ underwear or jeans. However, I am satisfied that she is qualified to give opinion evidence about the transference of semen. She has practical experience developed over the approximately 20 years that she has been at the Centre. She has participated in research about the retention and transfer of spermatozoa. Her training and case work have given her experience in determining where semen might be found. She trains individuals in the use of sexual assault kits and she has read the literature in the area.
[8] I would also direct the Crown to delete reference to the two website searches found on Mr. Hatch’s computer.
[9] My ruling is subject to this caveat. If Mr. Hatch decides to testify and he puts in issue the timing of sexual intercourse with Ms. Roberts, I will permit the Crown to cross-examine him on the issue and to lead evidence respecting semen transference by way of reply.
Justice H. A. Rady
Released: March 12, 2012
COURT FILE NO.: 10677
DATE: 2012/03/12
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN v. DAVID HATCH RULING Rady J.
Released: March 12, 2012
[^1]: The defence challenges the qualification of the proposed witness to give this evidence.