ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: M115/11
DATE: 20120313
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – RUSSELL KIRKPATRICK Applicant
Debra Moskovitz , for the Crown
Kristin Bailey , for the Applicant
HEARD: March 12, 2012
REASONS FOR DECISION
Benotto J.
[ 1 ] This is an application to quash the Order of Justice Marin committing the Applicant to stand trial on the charge of Attempt Murder. No issue is taken with the Order committing him to trial on Aggravated Sexual Assault and Choking.
[ 2 ] On July 12, 2010 between 5 and 6 pm, the complainant went, as was her daily custom, to visit her mother’s gravesite at Pine Hills Cemetery. She heard a voice say “hi” and turned around. She was startled. A male was standing there. He did not respond but grabbed her by the throat with both hands and choked her. She lost consciousness almost immediately.
[ 3 ] Sometime later, most likely several hours later, the complainant regained consciousness. She could not find her glasses, she could not see well. She was naked except for her socks. She saw a light and crawled towards it. The light was from the office of the cemetery which was now closed. The cemetery security guard was there. At about 9:20 pm he heard a soft knock and saw the complainant crouched down. Although he knew her from her regular visits, he did not recognize her at all because her face was so seriously disfigured and injured. She had red welts all over her body and there was a fluid discharge from her vagina area. He testified:
She was beaten extremely bad. That bad, I didn’t recognize her, and I’ve known the woman for seven to eight years. (May 9, 2011 pg 17)
[ 4 ] The police were called. The first police officer on the scene testified that there were obvious severe injuries to her head. There appeared to be blood coming from her vagina area. Her head was extremely swollen; her eyes were bulging out like two baseballs from her face. Her eyes were sealed shut. She was covered in bug bites.
[ 5 ] The police officer who worked with the sex crimes unit and who saw her at the hospital said of her appearance:
It was pretty horrific. I have never seen anything like that before. Both of her eyes bulged out from her head. She didn’t look human …The left side of her face was swollen out to about twice the size of the right side…and the one thing that really stuck in my mind was the smell. The odour coming from her was typical of what we see at scenes where people have died. (May 9, 2011, page 135)
[ 6 ] The complainant’s injuries included lacerations to her face, tongue and vagina. She had fractures in both her orbital bones and her jaw requiring surgery. Metal implants were used to repair her face and her jaw was wired shut. She needed plastic surgery. She was in the hospital for nearly 2 weeks.
[ 7 ] There were traces of the DNA of the accused under her fingernails indicating a struggle. There were also injuries to the accused face consistent with scratches. One could infer that she at some point attempted to beat off the attacker.
[ 8 ] On the issue of specific intent to kill, Justice Marin stated:
I have carefully considered all of the evidence in the course of this preliminary inquiry. In my view, there is sufficient evidence to order Mr. Kirkpatrick to stand trial on the charge of attempt murder. I rely on all of the evidence and place specific emphasis on certain factors including the following.
Firstly. the nature of the attack. This was a sudden attack in daylight upon a stranger. There was the immediate application of force to the neck of the complainant resulting in her loss of consciousness at the outset of the assault. She described to Nurse Kreaden, who recorded it at page 22 of the sexual assault kit that her assailant used two hands to her throat, and she estimated the force to be that often on the sliding scale of one to ten, where ten is the greatest amount of force.
Secondly, I rely on the savagery of the beating itself. It is clear on all of the evidence including the medical records and the photographs that the complainant suffered extensive bruising and petechia consistent with strangulation to her facial area. Her injuries were severe as indicated in the medical records, and by the fact that Mr. Warren was unable to recognize, despite having been familiar with her for some six of seven years as a frequent visitor to the cemetery where he was employed as a security guard and the evidence of Detective Kranenburg that the complainant was unrecognizable as human, given her extensive facial bruising and swelling of her facial area.
Thirdly, I rely on the sequence of events that comprise this incident. The complainant reports that she was almost immediately strangled, resulting in her loss of consciousness. She has no recollection of the sexual assault or subsequent beating that occurred. She was submissive and compliant for her attacker. In those circumstances it is a reasonable inference in my view to draw that the severe beating to the very vulnerable facial area and head area of the complainant was administered with the intent to kill a victim who had seen the face of her assailant.
The complainant, in her statement to the police, indicated that she believed her assailant intended to kill her, and reference may be made to Page 65 of her statement.
Consistent with a reasonable inference of an intent to kill arising out of the gravity of the beating, its timing, and its nature is the abandonment of the complainant in the cemetery at night time. The cemetery was some 65 acres in size. It was wooded. It was locked at least in terms of vehicular access at eight o’clock.
The complainant was left without any means of seeking assistance apart from her own resources. Her phone had been taken. Her car keys had been taken. Her clothing had been taken, and but for her religious faith and her determination to survive, her regaining consciousness and her crawling to a light that she saw in the cemetery is reasonable to infer that assistance would not have been readily made available to her in the circumstances in which she was left
[ 9 ] The applicant argues that the learned preliminary inquiry judge exceeded her jurisdiction with this reasoning. In particular:
The “sudden attack” on a stranger does not lead to an inference of specific intent to kill and thus is irrelevant.
The savagery of the beating does not establish specific intent. It is equally consistent here with an intent to render the complainant unconscious for the purpose of the sexual assault. Reference was made to R. v. Rajanayagam [2001] O.J. No 393 where Justice A. Campbell held that a gunshot wound to the leg could not imply an intent to kill because it was not directed to a vital part of the anatomy. He stated: “There is no evidence that the wounds were life-threatening or potentially life-threatening. There is no evidence from the gunshots themselves, of intent to kill.” (paragraph 22)
The sequence of events relied on by the judge ignored the fact that there was evidence of a struggle. The DNA under her fingers implies that. Thus the attack is equally consistent with an attempt to overcome resistance.
The fact that she was left without car keys or a phone indicate that the attacker knew she was not dead. Thus, this cannot be used to establish specific intent to kill. The area was patrolled regularly, and it was still light out. There was no attempt to hide her.
Analysis
[ 10 ] The test before me is whether there is any evidence upon which a properly instructed jury could infer that that the attacker had the specific intent to kill.
[ 11 ] The evidence as a whole clearly establishes that there is evidence upon which a trier of fact could infer intent to kill.
[ 12 ] R. v. Rajanayagam is distinguishable. There, the attacks were to the legs. Here, the victim was strangled to unconsciousness then beaten severely on the head. The nature of this attack is consistent with an intent to kill.
[ 13 ] The only evidence of a struggle is the DNA under her fingernails and the corresponding scratches on the face of the accused. The complainant testified that she remembered only the strangling. It could therefore be inferred that she became unconscious quickly. It could also be inferred that she attempted to stop the strangling and used her hands to do so. The subsequent beating that was inflicted on her was unnecessary to stop resistance. She was very quickly rendered unconscious. It can easily be inferred from the evidence that the beating continued, in an extremely violent fashion thereafter.
[ 14 ] The complainant was seriously injured. She was unrecognizable to someone who knew her and described as not looking like “a human.” She was left naked as night was falling, unconscious, seriously injured and without a phone or car keys. An inference could be drawn that the intent was that she would die from her injuries if she was not already dead.
[ 15 ] I agree with the reasons of Justice Marin.
[ 16 ] The application is dismissed.
Benotto J.
Released: March 13, 2012
COURT FILE NO.: M115/11
DATE: 20120313
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – RUSSELL KIRKPATRICK Applicant
REASONS FOR DECISION Benotto J.
Released: March 13, 2012