COURT FILE NO.: CR12-40000-52100
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Derrick Oram
P. Leishman and J. Tupper, for the Crown
A. Craig, for Derrick Oram
DATE: 20131023
HEARD: June 7, 2013
M. Forestell J.
RULING ON RE-EXAMINATION
Background
[1] Derrick Oram was charged with the second degree murder of Jordan Haughton. Mr. Oram’s trial began before me on June 4th 2013.
[2] In this trial, it was not disputed that Mr. Oram killed Mr. Haughton by stabbing him with a kitchen knife. The defence was one of self-defence. Mr. Oram also raised provocation.
[3] Aside from Derrick Oram, the only witness to the events that led to the death of Jordan Haughton was Judith Oram who was Derrick Oram’s wife at the time of the killing. Judith Oram and the deceased were involved in a sexual relationship. Derrick Oram came home early on the day that Mr. Haughton was killed and saw Mr. Haughton leaving the Oram apartment.
[4] Judith Oram testified that Jordan Haughton left the apartment and that Derrick Oram then assaulted her. Jordan Haughton returned and a fight ensued between the accused and Mr. Haughton. The fight began as a fistfight but within a short time, Derrick Oram had obtained a knife and stabbed Mr. Haughton.
The Issue and the Positions of the Parties
[5] Judith Oram testified over two and a half days. She was cross-examined extensively on prior inconsistent statements given under oath at the preliminary inquiry and on inconsistencies between her trial evidence and her statement to the police the day that Mr. Haughton was killed. The statement to the police was also taken under oath.
[6] The Crown sought a ruling as to three proposed areas of re-examination:
The Crown submitted that he should be permitted to re-examine the witness by reading a portion of the interview in which she was asked about an earlier incident involving her husband and the deceased because it was suggested in cross-examination that she deliberately failed to tell the police that she had sex with the deceased the day of that incident;
The Crown submitted he should be permitted to show the witness and the jury several portions of the DVD of the police statement which show the witness to be in a highly emotional state in order to demonstrate why the witness was not careful and detailed in some of her descriptions of events; and
The Crown submitted that he should be permitted to play the DVD of those portions of the statement upon which the witness was cross-examined to show the emotional state of the witness in order to provide a full context for the jury to assess the alleged inconsistencies.
[7] Counsel for Mr. Oram argued that the proposed re-examination should not be allowed. Counsel for Mr. Oram did not dispute that the Crown was permitted to re-examine on the circumstances of the statement and any explanation for the inconsistencies but argued that the playing of the DVD contents to show the witness’s emotional state, if done before the witness offers her emotional state as an explanation would amount to leading the witness and if done after the witness offers such an explanation would be unnecessary and prejudicial.
The Evidence
[8] On the voir dire, the DVD was played in its entirety. The DVD showed that the police told Ms. Oram, near the beginning of the interview, that Jordan Haughton had died. After hearing this Ms. Oram became very upset and the interview was interrupted for about 8 minutes. Upon resuming, Ms. Oram was asked if she was prepared to continue and indicated her willingness to continue with the statement. About nine minutes after resuming, Ms. Oram was again too distraught to continue and another 8 minute break ensued. After the second break, Ms. Oram continued the interview for the remaining fifty minutes without needing a break. She appeared to cry at times but was able to respond to the questions. There was no evidence as to Ms. Oram’s emotional state during the breaks and there was no evidence of what, if anything was done or discussed during the breaks.
[9] In determining whether to permit the re-examination, I considered the cross-examination in its entirety and in particular the areas of cross-examination in which Ms. Oram was challenged on apparent inconsistencies or omissions in her prior statements. In cross-examination, the police statement of Ms. Oram was referred to in the following six areas:
Failure to tell the police that she and the deceased had had sex on the day in June when the accused found them in the apartment and assaulted her.
Failure to tell the police that the accused assaulted her on the bed and in the living room and chased her around the apartment on the occasion in June when the accused discovered the deceased and the witness together in the apartment.
Whether the accused began hitting the witness before or after seeing the deceased in the bedroom on the occasion in June when he discovered them at the apartment.
Failure to mention to the police that the deceased came back to the apartment after leaving on the day that they were first discovered.
The number of times that the accused hit the witness on August 10th, 2011 the day that the deceased was killed.
Whether the witness followed the accused into the kitchen.
Ruling
[10] On June 10, 2013 I ruled as follows:
That the Crown could re-examine the witness by reading to her the portion of her statement regarding the earlier incident;
That the Crown could not play those portions of the DVD that showed that the witness was upset which were not the subject of cross-examination; and
That the Crown could, in re-examining Ms. Oram, play those portions of the DVD upon which Ms. Oram was cross-examined in order to provide the full context for the alleged inconsistencies including the emotional state of the witness.
[11] I indicated that I would provide written reasons at a later time. These are those reasons.
The Principles
[12] The law on re-examination was summarized by Watt J.A. in R. v. Candir (2009), 2009 ONCA 915, 257 O.A.C. 119, at para. 148:
It is fundamental that the permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness has been cross-examined. The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner's case. The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness. A trial judge has a discretion, however, to grant leave to the party calling a witness to introduce new subjects in re-examination, but must afford the opposing party the right of further cross-examination on the new facts. [Citations omitted.]
[13] The propriety of explaining, clarifying or qualifying answers in re-examination by playing portions of a video and audio recorded statement to the witness was considered in R. v. Stiers, [2010] O.J. No. 2185 where the Crown was permitted to play to a witness a portion of a prior consistent statement in re-examination. In Stiers the issue was self-defence and a critical issue was the timing of the stabbing of the deceased. The witness to the fight between the accused and the deceased had given statements to the police near the time of the stabbing. The defence suggested in cross-examination that the witness had never told the police that he had seen blood on the victim before the end of the fight. In a prior statement to the police, the witness had said that he saw blood near the beginning of the fight. The trial judge permitted the Crown to play the portion of the prior statement containing the reference to seeing blood near the beginning of the fight. The Court of Appeal agreed that this was proper re-examination. The Court did not find that there had been a suggestion of recent fabrication which would justify the admission of a prior consistent statement but held that:
…the re-examination may be properly justified as having been linked to its rehabilitative and explanatory purpose and to the subject-matter on which the witness has been cross-examined. The cross-examination canvassed Banwell's statements to the police in some considerable detail and suggested that Banwell had never told the police that he saw blood before he turned Ivancic over. This was not a full and accurate picture of the statements Banwell had made. In my view, the trial judge was entitled to conclude that the cross-examination had opened the door to the Crown's request to put the September 27 statement to Banwell on re-examination, in order to avoid a situation where the jury would be left with a partial and misleading appreciation of the tenor of Banwell's statements to the police on this crucial issue.” (para. 39)
[14] In R. v. Patterson, 2003 CanLII 30300 (ON CA), [2003] O.J. No. 1353 the trial judge permitted the Crown to play the entirety of a witness interview in re-examination. In that case, the cross-examination had raised the issue of the witness’s demeanour. In the cross-examination some portions of the video-taped interview had been played. In addition suggestions were made to the witness in cross-examination about her demeanour in the rest of the interview that was not played. The Court of Appeal held that the trial judge properly exercised his discretion in permitting the entire videotape to be played. The court held that without seeing the entire interview, the jury would have had “an incomplete, inaccurate and potentially unfair picture of the complainant’s demeanour.” The Court of Appeal also held that it was open to the trial judge to permit the videotape to go to the jury room during deliberations. (paras. 49-51)
[15] The analysis of the limits on re-examination by tendering a prior statement requires a clear statement of the fact in issue that is to be addressed by the proposed evidence. In Patterson, the cross-examination put the demeanour of the complainant during the police interview in issue. The demeanour of the complainant could only be fully assessed by a complete record which was available. In Stiers, the tenor of the cross-examination suggested that the witness had never made a particular statement to the police. The Crown was then entitled to correct that suggestion by playing the statement. In Stiers, the fact of the statement being made was relevant to the credibility of the witness.
[16] R. v. Nelson, 2007 ONCA 684 provides some support for the conclusion that a witness may be shown more of a videotaped statement than was the subject of cross-examination in order to refresh their memory. In Nelson, the trial judge permitted the Crown to re-examine the complainant on a portion of the tape that was consistent with her trial testimony in order to refresh the complainant’s memory. This portion of the tape had not been mentioned in cross-examination. The Court of Appeal concluded: “We are not certain that the re-examination was improper in these circumstances. Counsel’s re-examination clarified for the jury that the complainant, on her videotaped statement, had made two statements, one contradictory, and one consistent with her evidence at trial” (para. 8).
Application of the Principles
[17] The Crown was permitted to re-examine the witness as proposed, by refreshing the memory of the witness with the portion of the interview in which the witness described the earlier incident. This area was clearly raised in cross-examination. The Crown did not seek to play that portion of the DVD.
[18] The remaining issue was whether the Crown should be permitted to play any portions of the DVD as part of re-examination.
[19] In the case before me, it was argued by the Crown that the emotional state of the witness at the time of the interview was relevant to an assessment of all of the apparent inconsistencies, omissions or lack of clarity or detail in the statement of the witness. Therefore, it was argued, the witness and the jury should be shown all of the portions of the interview in which she appeared distraught. The witness could then be asked about her emotional state and its impact on the substance of her responses in the interview.
[20] Alternatively, it was argued that the Crown should be permitted to play those portions of the DVD that were the subject of cross-examination.
[21] I rejected the argument that all portions of the DVD showing the witness to be distraught ought to be played to the jury in re-examination. However, I concluded that the specific portions of the statement raised in the areas of cross-examination noted above (para. 9) could be played in re-examination.
[22] I rejected the argument that all portions of the statement that showed Ms. Oram to be distraught could be played in re-examination because to select and play only those parts of the statement in which the witness was distraught would create the potential for significant prejudice.
[23] The playing of the portions of the interview showing the witness upset or crying would run the risk, identified in Patterson and Spiers, of leaving the jury with an incomplete or misleading picture. The full DVD showed that Ms. Oram became very upset and was unable to continue at the beginning of the interview. However, she was relatively composed and showed no signs of any confusion throughout the last 50 minutes of the interview. She was able to offer details and to seek clarification of questions. It would be misleading for the jury to be shown only those portions of the DVD that show Ms. Oram to be upset and not to show the whole recording. Neither Crown nor defence wished the entire statement to be played.
[24] While I concluded that it was not open to the Crown to play all of the portions of the DVD that show Ms. Oram to be distraught, I reached a different conclusion with respect to the specific areas upon which Ms. Oram was cross-examined. While the emotional state of the witness has not been put in issue in a general way, the witness, when confronted with an apparent inconsistency between her account to the police of the events leading to the death of the deceased and her trial evidence on that point, gave the following responses:
Q. Do you recall saying that to the police?
A. I think so. I was confused. I don’t know, that statement doesn't seem...
Q. And that’s, that’s my question. You know, you’d agree that in that part of the statement, that’s different than what you’ve told the court.
A. Yes.
Q. Because you have told the police in this portion of the statement, that you followed, you ran behind and followed Derrick into the kitchen when he grabbed the knife. Am I reading that right? “And I run behind him and I said, “No,” and he grabbed the knife.” You would agree with me that’s different than...
A. Yes.
Q. ...running around to the other door?
A. Yes.
Q. You also say there:
‘He grabbed the knife and he like ran out to Jordan, and Jordan was trying to defend himself.’
Q. What did you mean when you said "ran out to Jordan"?
A. I don’t, I don’t, I don't know about that part, you know like...
Q. He didn’t run anywhere with the knife, right?
A. No.
Q. In your evidence they stayed where they were.
A. Yes.
Q. And, then at page 60 of that same statement, the Officer was asking you some more questions about this, and about half-way down the page he says:
Question: Judith, so he, Glen goes to the kitchen, you see him in the kitchen though.
Answer: Yeah.
Question: Okay, you saw.
Answer: I saw him ran in the kitchen.
Question: All right.
Answer: Because I ran behind him too.
Q. Do you recall saying that to the police?
A. I guess so, yeah.
Q. But in fact it is not the case that you ran behind him too, right? You were...
A. Not behind him.
[25] I have reviewed the relevant portions of the police statement in which the witness described the events leading to the death of the deceased. In the first part, the witness conveyed a great deal of information very quickly and then broke down. Later, when calmer and when asked specific questions, she clarified the account and gave a version of events much closer to her trial testimony. In order for the jury to fairly assess the consistency or inconsistency of the testimony of the witness with her prior statement, the context of the prior statement ought to be fully put to the witness. The context for this aspect of the statement included the emotional state of the witness as depicted in the videotaped statement. It was open to the defence in cross-examination to play the videotaped statement in order to provide the full context of the portion of the statement that was said to be inconsistent. It was presumably a tactical decision not to do so. As a result, it is open to the Crown to put that full context in re-examination. The playing of the DVD at this point is analogous to reading a larger portion of a statement to provide context.
[26] It was argued that the emotional state of the witness would prejudice the jury. The jury had already heard a highly emotional 911 recording. This was admitted on consent. Moreover, the proposed portion of the DVD would show that the witness was distraught at one point, but relatively calm later.
[27] It was also argued that the relevant portions of the statement contained prior consistent statements. To the extent that prior consistent statements were contained in the relevant portions, I provided the jury with an instruction regarding the limited use of the statement.
Forestell J.
Released: October 23, 2013
COURT FILE NO.: CR12-40000-52100
DATE: 20131023
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Derrick Oram
RULING ON RE-EXAMINATION
Forestell J.
Released: October 23, 2013