COURT FILE NO.: 09-50000744-0000
DATE: 20121004
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PEER MOHAMMAD KHAIRI
Accused
Mr. Robert Kenny and Ms. Amanda Camara, for the Crown
Mr. Christopher Hicks and Mr. Anthony LaBar, for the Defendant
HEARD: September 26, 2012
VOIR DIRE #2
ADMISSIBILITY OF A PHOTOGRAPH
REASONS FOR DECISION
Clark J.:
INTRODUCTION
[1] The accused is charged with having murdered his wife. It is not disputed that he stabbed her several times and, more importantly for purposes of this ruling, that he cut her throat. The only real issue at trial will be the intent of the accused in inflicting the wounds that caused the victim’s death.
[2] The Crown wishes to adduce a number of photographs showing the deceased’s body both in situ and at autopsy. Exhibiting commendable cooperation, counsel have agreed that all but one of the proposed photographs are properly admissible. On September 26, 2012, I conducted a brief voir dire to determine the admissibility of the single, disputed photograph. At the end of that hearing, I reserved, indicating that I would give my decision as soon as time permitted; what follows is that decision and the reasons therefor.
THE PHOTOGRAPH
[3] As noted above, amongst a number of other wounds he inflicted upon her, the accused cut the deceased’s throat. The Crown’s pathologist postulates that death was caused by exsanguination and the throat wound was the principal mechanism of death. Several of the agreed upon photographs depict this wound; almost without exception, they depict it only as a narrow lateral opening across the front of the neck.
[4] The photograph in dispute, however, was taken at autopsy with the deceased’s head deliberately articulated backward, so as to cause the wound to gape. The photograph was taken at very close range, such that, apart from a small amount of surrounding skin, all one sees is a large opening revealing the inside of the throat. The purpose of posing the head in that fashion, as I understand it, was to expose certain injuries to the internal structures of the neck, not visible in the other photographs, and, more importantly, not capable of being fully depicted by any other means.
POSITION OF THE DEFENCE
[5] Mr. Hicks contends that the photograph does not assist the jury with any issue they will have to consider; therefore, he says, the probative value of the photograph is minimal at best. On the other hand, the photograph is very graphic and therefore likely to both inflame the jury and, at the same time, distract them from a proper, dispassionate consideration of the evidence. As such, it will occasion prejudice to the accused.
POSITION OF THE CROWN
[6] The Crown contends that the photograph will assist the jury in correctly deducing the accused’s intent at the time he killed his wife. That is so, Ms. Camara asserts, because the photograph will help them to better understand, amongst other things, the pathologist’s evidence concerning the amount of force that would be necessary to cause the wound. Knowing the force required may, in turn, put them in a better position to decide the question of intent. While Crown counsel acknowledges that the photograph is somewhat disturbing, she argues that its probative value outweighs any potential prejudicial effect it may have.
DISCUSSION
General Principles
[7] To begin, defence counsel in this voir dire relied on R. v. McFarlane, [2006] O.J. No. 5841 (S.C.J.). In that case, I discussed some general principles applicable to the determination of when photographs should be admitted, and when not, and referred to a few of the authorities on point. For the sake of brevity, rather than repeat them here, suffice it to say that I adopt and apply those same principles in this case.
[8] I would also adopt the following helpful précis from R. v. Wills, [2007] O.J. No. 52 (S.C.J.), at paragraph 19, concerning when, and for what purposes, photographs may be admissible in a trial:
Photographic images of the deceased can be relevant to the issues in a murder trial in any number of ways. As noted in R. v. Schaefler, [1993] O.J. No. 71 (Gen. Div.) they may, for example, illustrate the facts on which experts base their opinions and the steps by which they arrive at their opinions; illustrate the minutiae of objects described in the testimony of a witness such as the nature and extent of wounds; corroborate testimony, provide a picture of the evidence, and assist the jury in determining its accuracy and weight; link the injuries of the deceased to the murder weapon; provide assistance on the issues of intent and planning and deliberation; and help the jury assess the positions put forward by Crown and defence counsel. [Emphasis added.]
Relevance
[9] The accused takes no issue with the logical relevance of the photograph; nor does he assert that there is any rule of evidence or policy by reason of which it is inadmissible. Therefore, the onus lies on the accused to persuade the court that otherwise relevant evidence ought to be excluded pursuant to the court’s residual discretion to exclude evidence where its probative value is outweighed by its potential prejudicial effect: R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.).
Probative Value
[10] As noted above, defence counsel asserts that the photograph in question has no probative value. In advancing this argument, counsel relied on McFarlane, supra, as an example where the court excluded a number of photographs on the basis that they had no probative value. Mr. Hicks argues, by analogy, that the photograph in question here does nothing to advance the Crown’s case and, thus, should be excluded. With respect, I do not agree that McFarlane parallels the case at bar in the way Mr. Hicks suggests.
[11] In McFarlane, the deceased had been shot 14 times by a person or persons using at least two handguns. The only issue was the identity of the killer(s) and the nature of the wounds did not speak to that; thus, I excluded certain photographs. I note, however, that a number of the photographs I excluded were particularly gruesome because they showed the deceased’s face and head with surgical probes inserted into the bullet wounds. Other photographs of the deceased I excluded because they were gratuitously repetitive.
[12] In this case, on the other hand, the identity of the killer is known; the only unknown is his intent. As I am advised by defence counsel, that will be the central, indeed, the only truly triable issue in this trial. As noted in Schaefler, and adopted in Wills, at paragraph 19, a photograph can “illustrate … the nature and extent of the wounds...” The jury is entitled to consider the nature of the throat wound and, more particularly, the force required to cause it, as some circumstantial evidence of the accused’s intent. Indeed, in my view, the throat wound is potentially of considerable importance to the jury in deciding whether the accused intended to kill his wife. To the extent that the jury will be able to discern it, the degree of violence involved in inflicting that wound is apt to be an important factor in that determination.
[13] While it is true, as Mr. Hicks points out, that the pathologist could describe the nature of the wound orally, that is true of any photograph. The real question is not whether the doctor can describe the wound he observed orally, but, rather, whether such a description would adequately equip the jury to make the determination they will be asked to make. As earlier noted, the pathologist will be asked to opine, amongst other things, on the degree of force required to inflict the injury to the neck. Accordingly, subject to balancing the likely prejudice attending such evidence against its probative value, a subject to which I will momentarily turn, the Crown should be entitled, to paraphrase Fuerst J. in Wills, to illustrate the facts upon which the pathologist bases his opinion, in order to assist the jury in determining the likely accuracy of that opinion and, hence, the appropriate weight to attach to it. That will help the jury to assess the positions put forward by Crown and defence counsel and, in turn, to reach a correct verdict.
[14] In the case of this photograph, I am of the opinion that the nature and extent of the wound would not be as effectively conveyed to the jury solely by oral exposition as would be the case were the doctor’s description accompanied by the photograph. I say that bearing in mind, in particular, the complete severing of one of the large arteries in the neck and the visible scoring of one of the deceased’s vertebrae. In short, I am of the view that the photograph has, potentially at least, considerable probative value.
Prejudicial Effect
[15] Turning to the potential prejudice of the photograph, defence counsel relies on R. v. McLeod, 2005 ABQB 842, A.J. No. 1571, where, at paragraph 6, Slatter J. rejected the Crown’s argument in that case that modern jurors “are desensitized to violence and gore because of the explicit nature of television programs, movies, and video games.” Like Slatter J., I do not think that the average Canadian is insensitive to violence. That said, I also agree with the view expressed by LaForme J., as he then was, in R. v. Kinkead, [1999] O.J. No. 1498 (S.C.J.), where, at paragraph 17, he stated, “juries are generally not surprised, horrified or inflamed to the point of hatred by scenes they expect to see from a horrific crime.” His Honour went on to acknowledge that “people can still be horrified and inflamed by what they see”, such that care must be taken in deciding whether evidence capable of inflaming a jury should be admitted. He was careful to add, however, that such an assessment “must be based on contemporary common sense and have an air of reality to it.”
[16] While the particular photograph at issue in this application is certainly graphic, as LaForme J. pointed out, juries expect to see a certain amount of disturbing material in the course of a murder trial. In, Kinkead, and its companion case, R. v. Ranger,[^1] for example, two sisters were found murdered in their home. Each had had her throat slashed. In three trials, photographs of the victims’ injuries were put before the jury. These included photographs of the interior of each girl’s throat. In the case of the elder sister, just as in this case, one of the photographs depicted a linear striation on one of her vertebrae. In none of the appeals was the admissibility of the photographic evidence challenged.
[17] More recently, in R. v. Teerhuis-Moar, 2009 MBQB 22, [2009] M.J. No. 27, certain graphic photographs were put before the jury. As in the case at bar, the sole issue in that trial was the accused’s state of mind at the time he killed the deceased. At paragraph 71 ff., Joyal J. held:
In concluding that I will not exclude the photographs based upon my residual discretion, I have remained mindful of the comments of David M. Paciocco and Lee Stuesser in their textbook The Law of Evidence where, at p. 416, they observed:
As alluded to earlier, photographs or videotapes are powerful pieces of evidence, and they may be excluded where they would serve to inflame the minds of the jurors against the accused. The issue is not so much how grotesque or shocking the photographs or videotapes are, but their probative value. Today, we are exposed to more violence in more graphic detail, and are less likely to be swayed by terrible images, than in years gone by. Therefore, there should be few cases where photographs or videotapes are excluded because of their inflammatory prejudice - provided they have probative value to the case making them worth seeing.
Given the effort involved and the sheer extent and precision of the mutilation performed on the victim's body, the photographic depiction of same has an obvious relevance to the Crown's theory respecting the accused's state of mind as it relates to the anticipated claim of intoxication. Moreover, I am not convinced that any description that might be provided in oral testimony of that which is found in the photographs, will be sufficiently complete and accurate so as to permit the Crown to adequately argue the permissible inferences that it wants the jury to draw respecting the accused's state of mind.
On appeal, notwithstanding the photographs “were graphic and upsetting”, the court upheld the trial judge’s decision to admit them: 2010 MBCA 102, 263 C.C.C. (3d) 100, at para. 71; leave refused, [2011] S.C.C.A. No. 18.
[18] I appreciate that, in addition to the effect of any particular photograph, the court must also consider the likely cumulative effect of the total number of photographs. In this case, as noted above, numerous other photographs of the body of the deceased will be put before the jury on consent. In my opinion, though unquestionably graphic, the single additional photograph at issue will not tilt the cumulative balance between probative value and likely prejudicial effect to any appreciable degree, if at all.
[19] Moreover, I am prepared to instruct the jury, both at the time the photographic evidence is adduced and again in my final instructions, that they must not allow themselves to be inflamed or distracted by the gruesome nature of this evidence, but must, rather, examine all the evidence, including the photographs, in a detached and dispassionate manner. As noted in R. v. Toten, 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225, [1993] O.J. No. 1495 (C.A.), at paragraph 102, “[t]he ability of jurors to follow legal instruction and properly perform the task assigned to them should not be underestimated.” That said, I am confident that any potential for prejudice this photograph may have, either standing alone or cumulatively with the other photographs, can be overcome by a proper instruction in that behalf.
RESULT
[20] I am not persuaded, with respect, that there is any air of reality to the prospect that, with the benefit of proper instruction and utilising what LaForme J. characterized as “contemporary common sense”, a jury will be inflamed or distracted by the photograph in question so as to prejudice the accused. Indeed, quite to the contrary, I am satisfied on a balance of probabilities that the probative value of the photograph outweighs the limited prejudice, if any, it might occasion. That said, it follows that the accused has failed to satisfy me that the photograph should be excluded.
[21] In the result, the photograph is admissible.
CLARK J.
Released: October 4, 2012
COURT FILE NO.: 09-50000744-0000
DATE: 20121004
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PEER MOHAMMAD KHAIRI
Accused
VOIR DIRE #2
ADMISSIBILITY OF A PHOTOGRAPH
REASONS FOR DECISION
Clark J.
Released: October 4, 2012
[^1]: Kinkead and Ranger were tried separately for the same two murders. Each was convicted; each appealed. The appeals were heard together. Kinkead’s conviction was upheld: (2003) 2003 CanLII 52177 (ON CA), 67 O.R. (3d) 57(C.A.); Ranger’s was overturned: (2003) 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.). Ranger was tried and convicted a second time. His second appeal was dismissed: 2011 ONCA 311, [2011] O.J. No. 1793 (C.A.); leave denied, [2011] S.C.C.A. No. 416.