Ontario Superior Court of Justice

Court File No.: CR-10-2316
Date: 20140227

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

PAUL KENYON
Respondent

Ms. G. Sang and Mr. B. Juriansz, for the Crown

Ms. J. Penman and Ms. M. Wyszomierska, for the Respondent

HEARD: January 27, 2014

RULING ON ADMISSIBILITY OF AUTOPSY PHOTOGRAPHS

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

FUERST J.

Introduction

[1] Paul Kenyon is charged with the second degree murder of Marion Deacon on March 7, 2010.

[2] Early that morning, Mr. Kenyon, who was Ms. Deacon’s boyfriend, alerted neighbours that her house was on fire. He said that he got out of the house, but Ms. Deacon was still inside.

[3] After firefighters arrived, they went into the house and discovered Ms. Deacon lying face down on the main floor, near a flight of stairs leading from the kitchen area to the master bedroom. She was still wearing her waitress uniform from work, and a jacket. She was taken to hospital where she was pronounced dead.

[4] Dr. Toby Rose conducted a postmortem examination on March 8. It revealed that Ms. Deacon had a broken jaw, and massive skull fractures resulting from six blows to the head. There was no soot in her airway, which indicated that she was dead before the fire started. The cause of death was blunt force injuries to the head and face. A neuropathologist concluded that it took approximately three to six hours for Ms. Deacon to die from her injuries.

[5] Dr. Rose prepared diagrams showing the various injuries inflicted to Ms. Deacon.

[7] The Crown alleges that Mr. Kenyon bludgeoned Ms. Deacon to death using a baseball bat that the police found inside the front entrance of the house.

[8] The defence does not contest that Ms. Deacon was murdered. Mr. Kenyon denies that he was the perpetrator. Accordingly, the issue at trial is the identity of Ms. Deacon’s assailant.

[9] The Crown seeks to introduce a photograph of Ms. Deacon’s body as it was when presented for postmortem examination, and photographs of the injuries to her face and head identified at the autopsy. All the photographs are in colour.

[10] Defence counsel object to admission of the photographs on the basis that their probative value is outweighed by the prejudicial effect.

The Photographs in Issue

[11] Exhibit 129 from the previous trial is a photograph of Ms. Deacon’s body lying on a stretcher in the autopsy room at the outset of the postmortem examination. Various pieces of medical equipment are still attached to the body, including a breathing tube and mask. The face is covered in dried blood. The body is clothed in what appears to be a black jacket and underneath that, clothing described as Ms. Deacon’s waitress uniform, including her tip apron. Dr. Rose testified that the photograph shows the body as she received it.

[12] Exhibit 130 is a photograph of the right side of Ms. Deacon’s face and head. The breathing tube had been cut away. Dr. Rose testified that the photograph shows bruising around the right eye, scratches and lacerations on the right side of the face, a large laceration under the chin, and a laceration under the lower lip.

[13] Exhibit 131 is a photograph of the left side of Ms. Deacon’s face, head and shoulder, after part of her hair was shaved off. Dr. Rose testified that the photograph shows bruising around the left eye, some burning to the left ear, and a large laceration of the scalp above the left ear.

[14] Exhibit 132 is a photograph of the left side and back of the head and upper portion of the back, after some of the hair was shaved off. Dr. Rose testified that the photograph shows several lacerations, including a large Y-shaped laceration at the back of the head.

[15] Dr. Rose said that some of the lacerations to the head went all the way through the layers of the scalp, and some did not. In general, more force would be required to split all the layers of the scalp than just some of the layers. There were complicated fractures of the back of the skull and extending on to the base of the skull. She said that it requires a significant amount of force to cause a skull fracture.

[16] Exhibit 133 is a photograph of Ms. Deacon’s face. Dr. Rose testified that it shows some patchy burning of the face, two black eyes, and lacerations including one above the left eyebrow and one below the lower lip. She could not tell whether the black eyes were caused by being punched in the eye, or by bleeding from a skull fracture above the eyes.

[17] Exhibit 134 is a photograph of Ms. Deacon’s mouth being held open by autopsy tools. Dr. Rose testified it illustrates that the jaw had been broken by a blunt force. It also shows a tearing of the lining of the lower lip and bruising around that area.

[18] Dr. Rose said that some of the lacerations to the face were full thickness, and some were not. In general, a full thickness laceration requires more force than one that goes through only some layers of the skin.

[19] Exhibit 135 is a photograph of the right side of Ms. Deacon’s face and neck. Dr. Rose testified that it shows two linear marks on the right side of the neck, which can be left by ligature strangulation. Because she did not find any internal evidence of strangulation, she could not say that there was strangulation. If there was, it did not contribute to Ms. Deacon’s death.

[20] Exhibit 136 is a photograph of the right shoulder and upper chest. Dr. Rose testified that it showed burning that occurred after Ms. Deacon died.

[21] Exhibit 137 is a photograph of the back of the right arm. Dr. Rose testified that it showed an abrasion.

[22] Exhibit 138 is a photograph of an injury to the left knee. Dr. Rose testified that it could have occurred after death.

[23] Exhibit 139 is a photograph of the back of the right hand. Dr. Rose testified that it showed extensive contusions. They could have been caused by fending off blows.

[24] Dr. Rose testified that all of the injuries occurred around the same time. She could not tell the order in which they occurred. Some of the injuries, including the Y-shaped laceration, were caused by blows. At least one injury to the brain was likely caused by a fall.

The Positions of the Parties

[25] On behalf of the Crown, Ms. Sang submits that the photographs have probative value that outweighs any prejudicial effect. They show the location, nature, and extent of the injuries, which will assist the jury in determining the type of weapon used, and the extent of force required to inflict the injuries. All of this is probative of intent, in that it demonstrates a highly personal attack by someone who hated Ms. Deacon, as opposed to an assault by someone who did not know her. Evidence of intent when combined with other evidence, including of animus on the part of Mr. Kenyon toward Ms. Deacon, is relevant to the issue of the identity of the perpetrator. The photograph of the body as it was at the outset of the postmortem examination is relevant because it depicts what Ms. Deacon was wearing and her condition in the hours before the fire while Mr. Kenyon was in the house with her. Ms. Sang concedes that the photographs are graphic, but submits that jurors are exposed to violence regularly on television.

[26] On behalf of Mr. Kenyon, Ms. Wysomierska submits that the probative value of the photographs is greatly diminished because of admissions that the defence is prepared to make. The defence will admit the report and evidence of Dr. Rose, including the various injuries she identified, the cause of death, that the blunt force injuries that caused death were inflicted before the fire, and that any burning injuries occurred after death. The defence is prepared to admit what Ms. Deacon was wearing when she was found in the house by firefighters, and also that the baseball bat caused some of the injuries. In light of the admissions the defence is prepared to make, there is no need for introduction of the photographs. Their graphic nature renders them inflammatory and raises the spectre of reasoning prejudice on the part of the jury. The prejudicial effect of the photographs exceeds any probative value.

Analysis

[27] 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.

[28] Whether the images are admissible, however, turns on a balancing of probative value and prejudicial effect. The three-step approach that a trial judge should take to make this determination was set out in R. v. P.(R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.) at 347:

(a) The judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case including the credibility of witnesses;

(b) The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters that are not in issue or because of the risk that the jury may use the evidence improperly to prove a fact in issue;

(c) The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

[29] In R. v. A. D., [2004] O.J. No. 5838 (S.C.J.) Dambrot J. observed that the balancing of probative value and prejudicial effect must take into account the principles identified by Binnie J. in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. In determining probative value, the issue in question must be identified, the relative importance of that issue should be considered, and the strength of the inference should be assessed. In evaluating prejudicial effect, moral prejudice (the improper inference of guilt from evidence of general disposition or propensity), reasoning prejudice (distraction of the jury flowing from inflammatory evidence, the creation of a distracting side issue, or the undue consumption of time), unfairness to the witness, and unfair surprise are considerations.

[30] The onus is on the defence to demonstrate that the balance favours exclusion of otherwise admissible evidence: R. v. P.(R.), above; R. v. Currie, 2000 22822 (ON SC), [2000] O.J. No. 392 (S.C.J.).

[31] Exhibit 129 has some probative value in that it shows that Ms. Deacon was still wearing her work clothes, and over them her jacket, when she was killed. This is evidence from which the jury may draw inferences about the timing of her death in relation to her arrival home from work, which, when combined with other evidence, is relevant to the identity of the perpetrator. The photograph is not a close-up of the body or the injuries. There is minimal risk that the jury will be inflamed by it. Any such risk can be addressed by a limiting instruction. The probative value of the photograph outweighs any prejudicial effect.

[32] The probative value of the autopsy photographs in general terms is that they will assist the pathologist in explaining the location and nature of the injuries to Ms. Deacon, and the cause of death. This in turn is relevant to issues including the degree of force used and the possible weapon, which when combined with other evidence is relevant to the identity of the perpetrator.

[33] The probative value of the photographs is lessened, however, because the defence is prepared to admit Dr. Rose’s findings and conclusions, as well as opinions she will provide about the nature of the weapon used and the degree of force involved. Additionally, defence counsel have no objection to admission of the diagrams that she prepared at the autopsy. Based on the testimony of Dr. Rose at the first trial, I find that the photographs would add little to her oral descriptions of the injuries, especially if that oral evidence is supplemented by reference to the diagrams.

[34] Exhibits 130, 131, 132, 133 and 134 are extremely graphic in nature. They are close-ups of Ms. Deacon’s face and head. Additionally, some of them show the injuries in a prominent and unnatural way, with the head shaved or parts of the face held apart with autopsy tools. I appreciate that at least some jurors will have seen graphic images on television and in the movies, but these are images of a real person in death. There is some risk that, notwithstanding a limiting instruction, it will be difficult for the jury to view these photographs without feeling revulsion.

[35] I am satisfied that the probative value of these photographs is outweighed by the prejudicial effect.

[36] Exhibit 135, which is a less graphic depiction than Exhibit 130, but still illustrates the injuries to the right side of the face including the marks to the neck, does not carry the same risk of prejudice.

[37] The defence does not take issue with the admission of Exhibit 136. Exhibits 137, 138 and 139 carry no risk of prejudice. All of these photographs are admissible should Crown counsel choose to present them during the testimony of Dr. Rose.

Conclusion

[37] Exhibits 130, 131, 132, 133, and 134 are not admissible. Exhibits 129, 135, 136, 137, 138 and 139 are admissible.

[38] I reserve the opportunity to revisit this Ruling should defence counsel resile from their willingness to make the admissions described, or approach the evidence in a way that enhances the probative value of the photographs.

FUERST J.

Released: February 27, 2014

COURT FILE NO.: CR-10-2316
DATE: 20140224

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
PAUL KENYON

REASONS FOR JUDGMENT

FUERST J.

Released: February 27, 2014