ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50000425-0000
DATE: 20120920

BETWEEN:

HER MAJESTY THE QUEEN – and – MLADEN PRALJAK

Cheryl Blondell and Michally Iny, for the Crown
Douglas Holt and John Filberto, for the Accused

HEARD: September 11-12, 2012

REASONS FOR RULING

M. Dambrot J.:

[1] Mladen Praljak is being tried by me, with a jury, on an indictment alleging that he committed the first degree murder of his wife, Zdenka Praljak. At the outset of the trial, the Crown brought an application for an order that certain hearsay statements made by the deceased be admitted at trial as dying declarations, res gestae statements, or pursuant to the principled approach to hearsay. I ruled that the statements were admissible and that my reasons would follow. These are those reasons.

The Homicide

[2] Zdenka Praljak succumbed to injuries caused by stab wounds inflicted on her body at the residence she shared with the accused.

[3] On December 26, 2008, at 5:03 a.m., an emergency radio call regarding a stabbing at the Praljak residence involving two “patients” was transmitted. Police officers and paramedics began arriving at the residence at 5:07 a.m. They discovered the deceased and the accused each lying in a pool of blood inside the residence, apparently in critical condition. They also observed blood splatter on the walls, and blood on the furniture. Some of the emergency personal attended to the accused. There was a large knife with blood on it by his left hand. Other emergency personnel attended to the deceased who was conscious, but was in significant distress. She was bleeding profusely and moaning in pain. She had a large wound on her side under her arm, several large cuts to her face, cuts to her neck and cuts to her hands. The wound to her side was very large and deep, approximately three to four inches long. Fatty tissue and musculature were showing through. One of the wounds to her face was a three to four inch deep laceration. One of the cuts to her neck was a deep two centimetre laceration.

[4] Both the accused and the deceased were prepared for immediate transportation to Sunnybrook Hospital. The deceased arrived at the hospital at 5:47 a.m. and was brought to a trauma room. She was pronounced dead at 7:32 a.m.

The Statements

[5] There is evidence that the deceased made statements to the emergency personnel that attended to her in her home, in the ambulance and in the trauma room.

1. At the home of the deceased

[6] P.C. Serena Marchis arrived at the home at some time after 5:23 a.m. She relieved P.C. Forrest who had been attending to the deceased and was holding a blanket on the wound to the deceased’s side to control the flow of blood. P.C. Marchis continued to place pressure on the blanket. The deceased said that she was in a lot of pain. P.C. Marchis tried to talk to the deceased to keep her conscious while they waited for paramedics to arrive. The deceased spoke to her in whispers, but P.C. Marchis had no difficulty hearing her. P.C. Marchis asked the deceased what had happened. The deceased told her that:

• “He” had been acting paranoid

• “He” was not on medication

[7] Fire Fighter Dan Bloxam, who also attended the scene, overheard a police officer, presumably P.C. Marchis, asking the deceased what happened. He recalled the deceased replying that:

• The male thought everyone was after him

[8] Bloxam was unable to recall any other questions or answers, except that he has some recollection of something being said about medication.

[9] While at the scene, P.C. Marchis asked who the male on the floor was, and the deceased said that:

• He was her husband

[10] The deceased kept telling P.C. Marchis that she was going to throw up and was in a lot of pain. As a result, P.C. Marchis, with the help of others, kept turning her on her side, comforted her and told her to hold on.

[11] P.C. Graham arrived at the scene after P.C. Marchis. She observed P.C. Marchis attending to the deceased, and assisted her. She heard P.C. Marchis talking to the deceased and trying to keep her conscious. She said that the deceased was pale, shaking, cool to the touch and appeared to be in shock. Yet, she was conscious the entire time, and able to speak in whispers. She recalled the deceased saying that she had pain in her chest and that it hurt to breathe.

[12] P.C. Graham also recalled P.C. Marchis asking the deceased what happened, and said that in response to this single question, the deceased replied:

• She had been sitting on a chair with the back facing the dining room

• She and her husband were arguing

• Her husband had been acting increasingly paranoid lately

• He said that he knew that she had called the police on him

• She said that he was crazy

• He left the room, returned and started stabbing her

• She was sitting on a chair

[13] Shortly before this trial commenced, P.C. Graham recalled some additional details of this conversation. She recalled that after P.C. Marchis asked the deceased what happened, she replied:

• Earlier in the evening, the accused had been drinking

• She had to go and pick him up

• The argument was about the accused’s mistress and money troubles

[14] Two paramedics also arrived at the scene. One of them, Andrea Cann, attended to the deceased. She examined her and asked her some medical questions. The deceased was responsive. She provided her name, her age and told the paramedic that she had no allergies. Ms. Cann heard other people speaking to the deceased as well, but was focussed on her task and did not know what was said.

2. In the ambulance

[15] The paramedics prepared the deceased and the accused for transportation. When they placed the deceased onto a stretcher blood immediately started pouring out of her body. They placed her in an ambulance and transported her to the hospital. P.C. Marchis rode with the deceased in the rear of the ambulance along with Fire Fighter Bloxam and Andrea Cann. Ms. Cann treated the deceased en route. At Ms. Cann’s direction, P.C. Marchis held the deceased’s head in place and watched for vomiting. She evacuated her mouth with a wand when necessary.

[16] The deceased remained completely conscious in the ambulance. P.C. Marchis again asked her what had happened. She may have asked her more than one question, perhaps saying, “and then what happened” after some of the deceased’s remarks, to prompt her a little bit, but no more than that. The deceased told her:

• She was lying on the couch

• “He” was acting paranoid, and asked her if she worked with the police

• She said “no”

• He left

• She looked up suddenly, and saw him over top of her with a knife

• She sat up

• He started stabbing her

[17] The deceased also told P.C. Marchis that she could not breathe, felt sick and had to “poo.”

[18] During the ride, the deceased was bleeding profusely. P.C. Marchis became covered in her blood. However, the deceased remained fully conscious the whole time.

[19] Ms. Cann said that she continued to ask the deceased medical questions en route. She said that the deceased was responsive, but she did not recall the answers. Ms. Cann also recalled P.C. Marchis speaking to the deceased. She said that the officer spoke to the deceased more than she did.

[20] Fire Fighter Bloxam remembered the paramedic speaking to the deceased in the ambulance, but did not recall what either the paramedic or the deceased said.

[21] When they arrived at the hospital, the deceased was taken to the trauma room accompanied by Ms. Cann.

3. In the trauma room

[22] Ms. Cann said that after the deceased was moved onto the trauma table in the trauma room, her attitude seemed to change. While the trauma team nurse was attempting to start an I.V., Ms. Cann was located next to the deceased’s head. She held the deceased’s arm and tried to comfort her. The deceased made eye contact with her and said, for the first time, that she felt like she was going to die.

Analysis

[23] The Crown submitted that the statements in question are admissible as dying declarations, res gestae statements or pursuant to the principled approach to hearsay. I will consider each of these avenues of admissibility in turn. Before doing that, I will discuss briefly the framework for considering hearsay evidence.

1. The Framework

[24] The first step that a trial judge must take in determining whether or not hearsay should be received in evidence at a criminal trial is to consider whether or not it is relevant. Once a determination of relevance is made, a trial judge must take a functional approach to the issue. In R. v. Dupe, 2010 ONSC 6423, [2010] O.J. No. 5756, at para. 17 I summarized the functional approach to the determination of the admissibility of hearsay evidence described by Charron J. in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, as follows:

1. Confirm the proposed evidence is hearsay – meaning it is tendered for the truth of its contents and that there is no opportunity for contemporaneous cross-examination.

2. If it is hearsay, it is presumptively inadmissible. However, the court then considers whether it falls into a recognized exception. If it does, it is admissible.

3. If it does not fit a categorical exception, then it may still be admitted pursuant to an analysis of whether it is both necessary and reliable.

4. If found to be necessary and reliable, the trial judge maintains residual discretion to exclude where the probative value of the evidence is outweighed by its prejudicial impact.

[25] It must be remembered, when considering steps two and three, that the party seeking to tender the hearsay statement must demonstrate its admissibility on a balance of probabilities.

[26] In this case, the evidence is clearly relevant. It is evidence of the actus reus of the offence, and the identity of the person who stabbed the deceased. It will likely be relevant to other issues as well. In addition, the evidence is clearly hearsay. I will proceed directly to the third question: does some or all of the evidence fall into either of the two recognized exceptions to the rule against hearsay raised by Crown counsel.

1. Dying Declarations

[27] For a hearsay statement to be admissible as a dying declaration, it is well settled that four criteria must be met. These were summarized by Archibald J. in R. v. Hall, 2011 ONSC 5628, [2011] O.J. No. 5109 at para. 24 as follows:

1. The deceased had a settled, hopeless expectation of almost immediate death;

2. The statement was about the circumstances of death;

3. The statement would have been admissible if the deceased had been able to testify; and

4. The offence involved must be the homicide of the deceased.

[28] In this case, the accused conceded in oral argument that all but the first of these criteria are met. He said that the only live issue is whether the deceased had a settled and hopeless expectation of almost immediate death at the time of the various utterances. This criterion is a subjective one. It may be inferred from statements made by the declarant, the extent and nature of the injuries, the length of time between the injuries and the statements and other circumstantial evidence. It has been said, rightly, that this is a high threshold to meet.

[29] In this case, it is entirely conceivable that, as a result of her grievous injuries, the deceased had a settled and hopeless expectation of imminent death when she made her statements in her home and in the ambulance. When she was on the trauma table, it is safe to say that she probably had such an expectation. I say this, of course, as a result of her expressing her feeling that she was going to die, in addition to the evidence of her severe injuries. I acknowledge that her statement in the trauma room can also serve as evidence of an expectation of death at an earlier point in time. But in this case, in light of the apparent change that came over the deceased in the trauma room just before she made this statement, I do not consider it safe to infer that she had the same state of mind at any earlier point in time. As a result, I am unable to conclude that the first criterion for the admissibility of dying declarations in respect of the statements in the residence and the ambulance has been met.

2. Res Gestae

[30] A spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion, often referred to as a res gestae statement, may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneously to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. ( See R. v. Khan (1988), 1988 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.) )

[31] In my view, all of these criteria are met in this case in respect of each of the utterances made by the deceased.

[32] I begin first with the requirement of spontaneity. What is crucial here is that the statement be so closely associated with the event that excited it that the mind of the declarant is still dominated by that event. The fact that the statement was made in answer to a question is but one factor to consider. (See R. v. Andrews, [1987] A.C. 281 (H.L.)) Here the statements undoubtedly flowed from, and were made under the stress and pressure of a startling event – the vicious stabbing of the deceased with a knife, resulting in grievous wounds accompanied by significant pain and uncontrolled bleeding. While the statements were not strictly contemporaneous with the stabbing, the stress and pressure occasioned by the stabbing were obviously ongoing at the time of each of the statements. The simple questions asked of the deceased may have prompted responses, but in no way did they deprive the statements of their spontaneous character.

[33] Second, the statements all related to the occasion that caused the stress or pressure. They all related directly to the stabbing, the events leading up to the stabbing and the consequences of the stabbing.

[34] Finally, in light of the stress and pressure of the occasion, the ongoing pain that the deceased was enduring and the evident concern she had about her survival, whether or not this amounted to a settled expectation of imminent death, there is little or no possibility of concoction or fabrication. It is inconceivable that the deceased, labouring under intense pain, great discomfort and fear of death, would turn her mind to the fabrication of a false explanation of her injuries for some ulterior purpose.

[35] Counsel for the accused argued that while there might be little reason to imagine that the statements were concocted, they might not be reliable in light of the distress that the deceased was under. In my view, there is no foundation for such a concern. While the deceased’s voice was weak, all of the evidence supports the view that she was coherent throughout. There is no basis to imagine that her statements were unreliable as a result of delirium or some other condition.

[36] As a result, I conclude that all of the ante-mortem statements of the deceased fall within the res gestae exception to the rule against hearsay.

3. The Principled Approach

[37] In light of my conclusion about res gestae, it is not strictly necessary that I deal with this basis for admission. Out of an abundance of caution, I will do so briefly.

[38] The accused concedes that the statements satisfy the requirement of necessity in light of the death of Ms. Praljak. As a result, I turn to consider reliability.

[39] For the same reasons that I concluded that the statements fell within the res gestae exception: that it is inconceivable that the deceased turned her mind to the fabrication of a false explanation of her injuries for some ulterior purpose, or that the statements were unreliable as a result of her condition, I also find that the circumstances provide sufficient support for the truth and accuracy of the statements to meet the reliability requirement of the principled approach to hearsay. In reaching this conclusion, I have considered the obvious great significance of the event to the deceased, by which I mean the stabbing, the absence of evidence of any motive to lie, the proximity of the statements to the stabbing, the evidence concerning the demeanour of the deceased at the time that the statements were made, the neutral relationship between the deceased and the persons who she spoke to, who were simply attempting to assist her, the spontaneity of the statements as already discussed, the detail in the statements and the absence of any concern regarding perception or memory.

[40] The accused points to the absence of a complete record of the questions asked of the deceased or her answers and the inconsistencies in the various accounts of the statements as indicia of unreliability. In my view, these shortcomings in the evidence are not of the sort that would undermine threshold reliability. They are matters of weight that can be considered by the jury.

Probative Value versus Prejudicial Effect

[41] Finally, whether considered as a res gestae exception or a principled approach exception, I must exclude the statements if their prejudicial effect outweighs their probative value. In this case, the probative value of the statements is high, and I can see no prejudicial effect that will be suffered by the accused if the statements are admitted, other than the inherent one of being unable to cross-examine the declarant.

[42] The accused argues that the probative value of the statements is limited because there is uncertainty in the evidence as to whether or not the deceased was referring to the accused when she described the stabbing, and that this shortcoming is all the greater because of the absence of a complete record. In my view, there can be no doubt that the deceased was speaking of her husband. The concern raised by the accused is fanciful.

[43] As for prejudice, the accused points to the fact that the deceased said that the accused was increasingly paranoid, creating a risk that the jury will engage in propensity reasoning. I see no such risk. The assertion that the accused was acting paranoid flows from his wife’s discovery that he was having an affair, and the fact that he lost his relationship with both his wife and his mistress as a result. This evidence hardly gives rise to moral prejudice, and will be heard by the jury in any event.

[44] The accused also argues that reasoning prejudice will flow from the admissibility of these statements in circumstances where the high threshold of a dying declaration has not been met. To the extent that I understand this argument, it would appear to be at odds with the rationale for the principled exception – that it is available where the requirements of necessity and reliability are met despite the fact that the evidence in question does not fit within a traditional pigeon-hole exception to the rule against hearsay.

Disposition

[45] The ante-mortem statements of the deceased proffered by the Crown are admitted in evidence.

M. Dambrot J.

RELEASED: September 20, 2012

COURT FILE NO.: 11-50000425-0000
DATE: 20120920

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – MLADEN PRALJAK REASONS FOR SENTENCE DAMBROT J.

RELEASED: September 20, 2012