Her Majesty the Queen v. Elizabeth Gayle and Fedrick Gayle

COURT FILE NO.: 12-1730

DATE: 20130816

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ELIZABETH GAYLE and FEDRICK GAYLE

Defendants

Counsel:

B. McGuire and C. Coughlin, for the Crown

M. MacGregor and D. McLeod, for the Defendant Elizabeth Gayle

S. Bernstein and S. Pennypacker, for the Defendant Fedrick Gayle

PRETRIAL Ruling # 6: ADMISSIBILITY OF HEARSAY OF FEDRICK GAYLE JR.

K. van Rensburg J.:

[1] On May 15, 2013, I ruled that the video-recorded statements of Fedrick Gayle Jr. were not admissible in evidence at the first degree murder trial of Elizabeth Gayle and Fedrick Gayle. These are my reasons for that decision, originally released on June 8, 2013. Fedrick Gayle Jr. is the younger brother of Tiffany Gayle. He was eight years old at the time of her death. He was present in the house when she died. He is now eleven years old, and in the months following the events he returned to Jamaica where he lives with his mother. His mother will not permit him to testify in person or by video link.

[2] The Crown applied to admit at trial the videotaped police interviews of Fedrick Gayle Jr. on June 12 and 17, 2010. Crown counsel contended that they would be satisfied with the introduction of only the statement of June 17th.

[3] Counsel for Elizabeth Gayle supports the introduction of both statements at trial, except for parts of the interviews where Fedrick Jr. talks about corporal punishment that he and Tiffany received, which it is submitted should be excluded as prejudicial prior discreditable conduct.

[4] Counsel for Fedrick Gayle Sr. opposes the introduction of the statements, but if the evidence were admissible, then the recordings of both interviews should be played, subject to editing to remove prejudicial parts.

[5] The interviews were conducted by Peel Regional Police Constable Geraldine McNulty, who had several years of experience interviewing children as part of the Special Victims Unit. Detective Mark Heyes acted as scribe for the second interview. Both officers testified at the voir dire. The video recordings of the interviews were filed as exhibits, and I reviewed the recordings in their entirety.

[6] The June 12th interview commenced at 7:32 pm and ended at 8:40 pm. Constable McNulty left the interview room once at 8:18 for three minutes. The rest of the time she was in the interview room with Fedrick Jr.

[7] The June 17th interview began at 1:47 pm. The officer left the room a few times during the interview, when she consulted with Detective Heyes. At 3:43, the officer indicated that the interview was ending, and the recording stopped. At 4:23 however, after a brief conversation with Fedrick Jr. off-camera, Constable McNulty returned to the interview room with Fedrick Jr. and continued the interview for another 12 minutes.

[8] By the time of the second interview, the police were aware that the cause of Tiffany’s death was blunt force trauma, and that an elongated instrument had been used. They were also aware of the information from Elizabeth Gayle’s statement the previous day about the use of a baseball bat. One of the main reasons for interviewing Fedrick Jr. a second time was to find out whether he had seen any such implement in the house. There were a number of attempts to address this issue with Fedrick during the interview. Until they went off camera, however, Fedrick did not say anything about having a bat at their house. When asked if he played baseball, he asked what baseball was. In response to Officer McNulty’s explanation, he said that he played it in Jamaica. He was asked whether he had a baseball bat at home and he replied “no”, but that he knew how to make one. He then described making a bat from wood, chopped in a “rectangular prism”. Detective Heyes, who had lived in England as a child understood that what Fedrick was describing was a cricket bat, and at his suggestion Officer McNulty asked Fedrick about the game “rounders”, however this did not prompt any mention of a bat by Fedrick Jr.

[9] It was only after the off-camera discussion that Fedrick Jr. stated that his father had an iron bat. He was asked if it was the same as a baseball bat and he said that it was different. He indicated the colour of the iron bat by pointing to a stainless steel light switch plate and he said the handle was the same colour. He said the bat was kept in a corner of the garage. When asked where he had last seen the bat, he said it was outside in the backyard when he was getting some air the morning of June 12th and when asked if it had any markings he said it had red letters, maybe a “C”, “T” or “A”.

[10] Both officers testified about what had happened off camera. According to Detective Heyes, after the interview had ended he walked into the room where Constable McNulty was setting up a video game, and he asked Fedrick if he had a cricket bat at his house. Fedrick responded “no”, but said that his dad had an iron bat in the garage. The officer testified that he did not ask Fedrick Jr. any follow-up questions and knew they needed to go back on video. Detective Heyes set up the video equipment again, while Constable McNulty spoke about what had occurred with Detective Thompson, the officer in charge of the investigation. Detective Heyes was certain that he was the one who asked Fedrick Jr. whether he had a cricket bat, while Officer McNulty set up the video game, and that is consistent with his notes.

[11] Constable McNulty also recalled setting up a video game for Fedrick in the waiting room after they left the interview room. She could not recall if she or Detective Heyes had asked the question about whether he had a cricket bat, and the way her notes are written suggests that she may have asked the question. As soon as Fedrick responded she knew they had to get him back on video. She notified Detective Thompson and briefed her on what came from the interview. According to both officers, there was no further discussion with Fedrick off-camera after his statement about an iron bat.

[12] The interviews of Fedrick Gayle Jr., being hearsay, are presumptively inadmissible. The Crown seeks to admit such hearsay under the principled exception, and as such has the onus of establishing necessity and threshold reliability. Even if the statements could be admitted on this basis, counsel for Mr. Gayle contends that they should be excluded because their admission in evidence would be unfairly prejudicial to his defence.

[13] There are also aspects of the interviews that reveal prior discreditable conduct. It was acknowledged that it would be possible for the interviews to be edited, if in fact the court concluded that certain aspects were inadmissible on this basis.

[14] There were aspects of the interview that the Crown acknowledged should be edited out, such at pp. 79 to 81 of the transcript of the second interview, where the officer counselled Fedrick Jr. about telling someone when he gets hit. In the same vein were passages at pp. 38 to 41 of the same transcript, when Fedrick Jr. was questioned about marks on his body which he denied were from being hit, which I would have excluded in any event as irrelevant and prejudicial.

[15] For the reasons that follow, I have concluded that the necessity element is met in this case, and that many of the circumstances surrounding the statements are consistent with their reliability. There are however important inconsistencies in Fedrick Jr.’s account on material points that affect the reliability analysis, and ultimately I have concluded that it would be unfair to admit the statements in the absence of the ability of the accused to cross-examine the declarant on such points. There is a real risk that the jury would give too much weight to Fedrick’s evidence because of the fact that he was the only person other than the accused who was in the house when Tiffany was killed. Where Fedrick’s statements are the most reliable (in describing Tiffany’s punishments and conflict with her parents), there is other evidence available to the Crown that can be adduced through witnesses at trial who can be cross-examined on their accounts. I am of the view that it would be inappropriate to admit certain parts of Fedrick’s interviews, as playing excerpts only in court would be misleading, and may lead the jury to wonder about what has been left out, and why.

Necessity

[16] According to R. v. W.F.J., 1999 667 (SCC), [1999] 3 S.C.R. 569, what is required in order to establish the necessity requirement is that the court be satisfied that the evidence is unavailable despite reasonable efforts to obtain it.

[17] I am satisfied that reasonable efforts were made to have young Mr. Gayle testify at the trial, including by video conference. Fedrick Gayle Jr. returned to live with his biological mother in Jamaica in the months following Tiffany’s death. It is unnecessary to detail here the efforts that were made to have him testify in Canada, or by video link from Jamaica. The steps that were taken were disclosed in the Crown’s application record, and explored during the cross-examination of Detective Heyes. Despite various efforts to facilitate the testimony; discussions with the mother’s attorney; and offers of counselling and other assistance for the boy, Fedrick Gayle Jr.’s biological mother would not permit him to testify.

Reliability

[18] Some authorities suggest that the question of threshold reliability involves an assessment of whether the statement is “likely true”. Others focus on whether there are features of the statement that contribute to the reliability of the statement such that the absence of cross-examination is of little importance.

[19] In R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57, Charron J. noted, at para. 92:

When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not – recall U.(F.J.). [Emphasis added.]

[20] Accordingly, in assessing reliability, the court must “inquire into those factors tending to show that the statement is true or not”. There are a number of factors that are consistent with the overall reliability of Fedrick’s statements as follows:

• The fact that the statements were videotaped would permit the jury to assess the declarant’s memory, narration and apparent sincerity: R. v. J.M., 2010 ONCA 117, [2010] O.J. No. 585 (C.A.), at para. 69.
• The timing of the statements, which were given to the police immediately after and a few days after the events in question supports their admissibility. Fedrick’s memory of events is likely to be better in the interviews than if he were to testify at trial three years later.
• Officer McNulty conducted the interview in a manner that avoided leading questions, and was conducive to obtaining Fedrick’s own account. There was no sense that the officer was putting words in the child’s mouth, and the result was an interview in which much of what the declarant said seemed spontaneous. See R. v. Olsen and Podniewicz, 1999 1541 (ON CA), [1999] O.J. No. 218 (C.A.) at para. 29, where the court notes that each of these three factors can support the reliability of a child’s police interview.
• Fedrick Jr. appeared to understand the need to tell the truth, and what it meant to tell the truth. He knew he was speaking with a police officer following Tiffany’s death.
• Fedrick Jr. appeared to be intelligent and articulate for his age. He expressed himself clearly. He was not obviously traumatized at the time of the interview, and since he did not appear to understand the significance of many of the questions he was asked, there would be no apparent reason for him to have responded untruthfully.
• Some of what Fedrick said was consistent with other evidence: his references to discipline in the house and corporal punishment for example are consistent with the anticipated evidence of Samantha Gayle and Kashra Charles.

[21] I turn now to consider some of the problems with the reliability of Fedrick Jr.’s statements:

• It is apparent on a number of occasions that Fedrick Jr. is guessing or making assumptions. In some instances this is revealed in a follow-up question by the officer, such as when he said that his father was in the basement calling out Tiffany’s name, and had opened the door to the computer room. When asked how he knew that (if he wasn’t in the basement), Fedrick said he “just figured” that he had opened it. He said that Kashra took the bus home at 9 or maybe 8 o’clock. When asked how he knew that, he responded, “because she always takes a bus”. Other assumptions are less obvious, but are on what could be important points. He said he thought Tiffany got hit in the middle of the night. When asked why he knew that, he said he heard her crying, but when asked where she was crying, he explained that it was upstairs, and that she had come up to go to the bathroom. All of this sounds like speculation, which is dangerous, when the very issue the jury will need to address is how Tiffany came to be beaten to death.
• Fedrick Jr.’s concept of time and the number of times something happened is very imprecise. He said he was “always” being smacked by his parents, but when asked when that last occurred, he said “last year”, and “January”, and that it happened when he came here in 2009. When asked how many times his father called out Tiffany’s name he said “I think it’s three, or just think of a number I do not know”. He said his parents came home maybe 11:00 or 12:00, that Tiffany woke up at 5:30, and that he normally was in the basement at 7:00 or 6:00 or 5:00 in the evening.
• There was at least one occasion when Fedrick Jr. appeared to get carried away with his imagination, when he said that maybe his mom had a video camera and was watching them to make them safe in the house.
• There were aspects of Fedrick Jr.’s statement where it seemed that he was trying to make sense of what occurred, but where his account was implausible, such as when he described his father going through the house calling out Tiffany’s name, opening every door, and that his mother and father were looking inside and outside the house for Tiffany.
• While consistent in some respects, there were a number of differences between Fedrick’s accounts in the two statements, of what happened when he woke up the morning of June 12th, as to where his father and mother were and what he did, heard and saw after he woke up. Only in the second statement did he say that he went into the basement, explaining that it was to get some tissue. The inconsistencies and apparent incompleteness of the accounts detract from their reliability as evidence of what in fact occurred, and could lead the jury to speculate as to whether Fedrick Jr. in fact had seen or heard something that he did not reveal to the officer.
• There is also the obvious problem that, until he had the conversation with the officers off camera at the conclusion of the interview, Fedrick said nothing about a bat at the house, and in fact had denied that he had a bat. He seemed unfamiliar with baseball and appeared not to understand the difference between a baseball bat and a cricket bat. Although the officers explained what happened when they went off camera, it is difficult to understand how two experienced officers could have permitted this exchange to occur.

[22] While Crown counsel suggested that there is confirmatory evidence with respect to what Fedrick Jr. said about the bat in his statement (which can be considered under a Khelawon analysis), in fact the evidence is not confirmatory. Fedrick Jr.’s description of the particular iron bat his father has in the garage, is not consistent with the aluminum bat the Crown believes was used in the offence, that is a blue coloured aluminum bat with a black handle. What Fedrick described was the same colour as the stainless steel light switch plate, and he said it had red letters, maybe a “C”, “T” or “A”. The handle was the same colour. He said the iron bat was “different from” a baseball bat. Although Fedrick said he last saw the bat in the backyard when he went out to get some fresh air, he had not revealed this information earlier in the interviews, even when asked directly if he had a bat, or when he provided his account about what he did that morning and going outside to get some fresh air.

[23] Crown counsel submits that some latitude should be shown in considering Fedrick Gayle Jr.’s account, which contains incremental disclosure and inconsistencies typical of his age. It is true that a common sense approach must be taken to the testimony of young children, and that a flaw, such as a contradiction or a failure to disclose at once, is less significant in the evidence of a child than that of an adult: R. v. W.(R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.). These factors are relevant to the assessment of a child’s evidence at trial, where the courts have noted that skilful cross-examination may more readily confuse a child, and where a child may have difficulty testifying about events that happened years before: R. v. F.(C.C.), 1997 306 (SCC), [1997] 3 S.C.R. 1183. In my view, however, the fact that some latitude is applied to the assessment of a child witness’ evidence at trial cannot serve to bridge an obvious gap in the threshold reliability analysis.

[24] Crown counsel rely on the statement of the court in R. v. Nicholas, 2004 13008 (ON CA), [2004] O.J. No. 725 (C.A.), where the Court of Appeal held that the inability to cross-examine the declarant of an out-of-court statement was a matter going to the weight of the evidence and not its admissibility. What is important in that case however is that the trial judge had determined that the statement had threshold reliability, and had excluded it because of the inability to cross-examine, even where he doubted that cross-examination would have had any effect. The Court of Appeal held that this was an error, as in the circumstances of that case, the statement had nothing to do with identification and consent, the issues on which defence counsel had asserted the need to cross-examine.

[25] The determination of threshold reliability engages directly the question of whether the contents of the statement are inherently trustworthy and whether the hearsay sought to be introduced is capable of being meaningfully tested by the ultimate trier of fact. As Charron J. stated at para. 3 of Khelawon:

…In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused’s inability to test the evidence may impact on the fairness of the trial thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.

[26] The determination of threshold reliability engages directly the question of whether the contents of the statement are inherently trustworthy and whether the hearsay sought to be introduced is capable of being meaningfully tested by the ultimate trier of fact.

[27] In R. v. Blackman, 2008 SCC 37, [2008] S.C.J. 38, Charron J. noted at para. 35 that “the trial judge’s role as gatekeeper is to determine whether this concern [about the inability to cross-examine the declarant] is sufficiently overcome in the circumstances of the case to justify receiving the evidence” and that “this criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth”.

[28] While I find the circumstances in which the statements were given by Fedrick Gayle Jr. to be consistent with their reliability, and while the jury would have the benefit of seeing and hearing Fedrick on video and could therefore draw their own conclusions about when he was likely speculating or making assumptions, the inconsistencies in his account and the timing of when he spoke of the iron bat, cry out for cross-examination. The danger is that the jury could use these statements to fill in certain gaps and to bolster the effect of other evidence in this case. The statements are not reliable enough to be left to the jury for this potential use. The risk is that the jury may give too much weight to Fedrick’s Gayle Jr.’s evidence because he was the only other person in the house when Tiffany died.

[29] Accordingly, the Crown will not be permitted to lead in evidence the police interviews of Fedrick Gayle Jr.

K. van Rensburg J.

Released: August 16, 2013

COURT FILE NO.: 12-1730

DATE: 20130816

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ELIZABETH GAYLE AND FEDRICK GAYLE

pretrial Ruling #6: admissibility of hearsay of fedrick gayle jr.

K. van Rensburg J.

Released: August 16, 2013