COURT FILE AND PARTIES
COURT FILE NO.: 339/13
DATE: 2014-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Mark Poland, for the Crown
- and -
Marlon Nurse and Darryl Plummer
Enzo Battigaglia, Counsel for Mr. Nurse
Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer
REASONS FOR RULING
PUBLICATION BAN:
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.
Coroza J.:
OVERVIEW
[1] Marlon Nurse and Darryl Plummer stand charged that they committed first degree murder. On this murder trial, the Crown brings an application for an order that certain gestures made by the deceased, just prior to his death, are dying declarations. Mr. Nurse is opposed to the admissibility of this evidence. Mr. Plummer did not participate in this application. The evidence on this voir dire consisted of the testimony of two police officers and a paramedic.
THE GESTURES
[2] The deceased, Devinder Kumar, was stabbed at least 29 times and his neck was almost severed on November 10, 2011.
[3] Mr. Kumar was found on the road near 12161 the Gore Road in the Town of Caledon. Constables Mitchell and Bucsis from the Ontario Provincial Police (OPP) responded to an urgent dispatch call and were the first officers who arrived at the scene.
Cst. Mitchell’s Evidence
[4] When he arrived, Cst. Mitchell walked up to Mr. Kumar who was lying on the side of the Gore Road. There were a number of males around Mr. Kumar. Cst. Mitchell observed that Mr. Kumar had significant injuries to his neck. He described the injuries as a gash on Mr. Kumar’s neck (roughly 5 inches long, 2 inches deep and 2 inches wide) and he could also see his spine. There was a large amount of blood.
[5] He immediately went back to his police cruiser and retrieved combat dressings and a first aid kit. When he returned, he noticed Mr. Nurse at the roadway.
[6] Cst. Mitchell put the combat dressing on Mr. Kumar’s neck and he noticed stab marks on the left side of Mr. Kumar’s body. The officer cut off Mr. Kumar’s clothing and discovered wounds on Mr. Kumar’s deltoid and upper back.
[7] Cst. Mitchell asked Mr. Kumar “who did this?”, but, Mr. Kumar could not speak. Cst. Mitchell testified that Mr. Kumar was conscious and looking around and trying to stand up. Mr. Kumar was also having difficulty breathing. Cst. Mitchell rolled Mr. Kumar over onto his back and he testified that Mr. Kumar pointed to his abdomen and the officer noticed there was a one inch gash to Mr. Kumar’s rib cage and his small intestine was coming out of his body. It was at that time that Mr. Nurse had approached the scene.
[8] According to Cst. Mitchell, Mr. Nurse leaned in and said: “I know that guy, that’s Dev.” Cst. Mitchell then asked Mr. Nurse what had happened, and Mr. Nurse replied that Mr. Kumar had been, “dumped out of a car by three guys”. Cst. Mitchell then testified that he immediately broadcasted this information over the police radio.
[9] Cst. Mitchell testified that his focus was on Mr. Kumar. He testified that Mr. Nurse was behind him at about a distance of one half meter, and, from time to time, Mr. Nurse would lean in and ask the officers if Mr. Kumar “was going to live.”
[10] Mr. Nurse advised Cst. Mitchell that Mr. Kumar had been stabbed by a black guy with dreadlocks. When he told the officer this, he pointed to the address of 12161 The Gore Road. This was Mr. Nurse’s residence.
[11] Upon hearing further information from Mr. Nurse, Cst. Mitchell sent out a second broadcast that a male was running southbound in and around the houses on the Gore Road.
[12] Cst. Bucsis was assisting Cst. Mitchell and attempting to keep pressure on Mr. Kumar’s neck.
[13] Cst. Mitchell testified that Mr. Kumar was looking around and the officer told Mr. Kumar that they were doing everything they could. Cst. Mitchell recounted that Mr. Kumar’s arms were flailing and he was pointing to his intestines and the officer reassured Mr. Kumar that they were “going to try and fix it” and he held his arms.
[14] As Cst. Mitchell attempted to gather Mr. Kumar’s arms, Mr. Kumar shook Cst. Mitchell’s hands, looked up and he pointed the index finger of his right hand to an area behind him. Mr. Nurse was standing right behind Cst. Mitchell in this area. Cst. Mitchell testified that the only person standing there was Mr. Nurse and there was an open field behind him. The other males at the scene were not in the vicinity when Mr. Kumar pointed.
[15] Paramedics then arrived on the scene and immediately dressed Mr. Kumar’s wounds. Cst. Mitchell recounted that Mr. Kumar was a bit combative with the paramedics but he eventually stopped flailing his arms. The paramedics and the officers strapped Mr. Kumar down to the board and lifted him into the ambulance. Cst. Mitchell testified that he had Mr. Kumar’s arms when he went into the ambulance and he had two firm shakes when he placed him in the ambulance. Regrettably, Mr. Kumar died in the ambulance.
Cst. Bucsis’s Evidence
[16] Cst. Bucsis testified that when he arrived with Cst. Mitchell on the scene, he noticed Mr. Nurse walking towards their position from the north on Gore Road. Mr. Nurse approached the officers and two other males who had waved the officers down. Cst. Bucsis asked Mr. Nurse and the other two males if they had witnessed anything. All three told him that they had not. However, Mr. Nurse told the officers “I know this guy” and that “he is a good friend of mine”.
[17] Cst. Bucsis attempted to put pressure on Mr. Kumar’s neck and he testified that he tried to get Mr. Kumar to calm down but Mr. Kumar was trying to wrestle with him. He testified that Mr. Kumar had blood in his eyes and he was trying to reassure him and ordered Mr. Kumar to stay down.
[18] Cst. Bucsis testified that Cst. Mitchell was located at the base of Mr. Kumar’s feet.
[19] Cst. Bucsis testified that Mr. Nurse told the officers that he had seen the body dumped out of the vehicle and Cst. Mitchell then immediately broadcast this on the air.
[20] Cst. Bucsis testified that Mr. Kumar was trying to communicate with the officers and he was trying to get Cst. Mitchell’s attention and he was also pointing at Mr. Nurse. Mr. Nurse then responded “I know this guy he is a good friend of mine”. Mr. Nurse then told the officers Mr. Kumar had come up to his house, he was asking for money and that he saw Mr. Kumar being chased down the road by a black male with dreadlocks. After hearing this, Cst. Bucsis advised Cst. Mitchell to get that information out over the air.
[21] Cst. Bucsis testified that Mr. Kumar pointed to his abdomen using his index finger. Cst. Bucsis unzipped Mr. Kumar’s jacket and saw that his intestines were spilling out.
[22] In cross examination, Cst. Bucsis testified that that Mr. Kumar could not talk. He also described in detail how Mr. Kumar pointed to Mr. Nurse:
A. He said he knew the guy. So he can’t talk. He’s fighting with me and he’s pointing to Mitchell and he’s pointing to Nurse. He’s trying to communicate for help was my assumption. He’s trying to point to his friend.
Q. Right.
A. So, I’m-I’m like, okay, you’re-you know, he’s-he’s pointing at his friend. Nurse said, I know this guy, he’s my friend. Okay.
Jessica Hardt’s Evidence
[23] Jessica Hardt is a paramedic with Peel Region Paramedic Services who was dispatched to the scene.
[24] On November 10, 2011 when she first arrived she determined that Mr. Kumar was able to obey commands. She described his injuries as follows:
• Mr. Kumar’s neck had been cut just before the carotid;
• Mr. Kumar’s stomach was eviscerated;
• Mr. Kumar was losing a lot of blood
[25] She determined that the injuries were life threatening. She testified that Mr. Kumar was responsive. Her assessment was based on Mr. Kumar’s ability to open his eyes, his verbal response and his motor response. His eyes were open, he was able to look at her when she asked him to but he could not speak.
[26] She described that when she tried to get Mr. Kumar into the ambulance he became combative and his status was decreasing very quickly. Although she could not recall the exact time Mr. Kumar died, she believed it was about 1 to 2 minutes after he had entered the ambulance and a cardiac monitor had been placed on him.
ANALYSIS
[27] There is no dispute that hearsay is prima facie inadmissible. However, the first step that a trial judge must take in determining whether or not hearsay is received at a criminal trial is to consider whether it is relevant (see R. v. Praljak 2012 ONSC 5262, [2012] O.J. No. 4430 (S.C.J.) per Dambrot J. at para.24). The Crown submits that the hearsay is relevant to the identification of who was involved in the murder of Devinder Kumar. I agree that the evidence is relevant.
[28] Once a finding of relevance is made a trial judge must then determine if the hearsay is admissible having regard to the following criteria:
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;
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 presumptively admissible.
A party may challenge the admissibility of hearsay falling within a traditional exception on the basis it does not meet the criteria of necessity and reliability and should not be admissible
Even, if hearsay does not fit within the traditional exception then it may still be admitted under the principled approach but the party seeking to admit the evidence (in this case, the Crown) bears the onus on admissibility and must demonstrate that the evidence is necessary and reliable.
Ultimately, there is still the residual discretion to refuse to admit the evidence if prejudicial effect outweighs its probative value. (See R. v. Praljak, supra, and R. v. Khelawon 2006 SCC 57 and R. v. Mapara 2005 SCC 23)
[29] It is important to note that the Crown will be introducing the actions of Mr. Kumar, for a non-hearsay purpose, because it forms part of the narrative of both Cst. Mitchell and Cst. Bucsis as to what happened at the scene and the actions of the deceased. Moreover, the Crown is going to introduce the evidence of Cst. Bucsis who testified that after Mr. Kumar pointed to Mr. Nurse, he responded by telling the officers that Mr. Kumar had come up to his house, had asked for money and was then chased down the road by a black male with dreadlocks. The Crown submits that the timing of this statement which followed Mr. Kumar’s gesture is relevant because it appears that Mr. Nurse’s story changed because he initially told the officers he had not witnessed what had happened. If introduced for that purpose, it is not hearsay, because the sole purpose of introducing the gesture is to establish that Mr. Nurse’s story changed after Mr. Kumar pointed at him.
[30] However, the Crown also wishes to introduce the evidence of pointing for another purpose and that is to demonstrate that Mr. Kumar was trying to communicate to the police officers that Mr. Nurse was responsible for his injuries and was making a dying declaration. The Crown seeks to tender Cst. Mitchell’s evidence that after pointing at his injured abdomen, Mr. Kumar pointed at Mr. Nurse.
[31] The parties acknowledge that the evidence is hearsay, but do not agree whether it falls into a recognized exception. The Crown submits that it falls into the exception of a dying declaration, res gestae or under the principled exception. If I hold that Mr. Kumar’s actions fall into a traditional exception to the hearsay rule, it is presumptively admissible and the onus is on Mr. Battagaglia to challenge the admissibility of hearsay falling within a traditional exception on the basis it does not meet the criteria of necessity and reliability.
[32] For the statement to be admissible as a dying declaration, four criteria must be met:
The deceased had a settled, hopeless expectation of almost immediate death;
The statement was about the circumstances of death;
The statement would have been admissible if the deceased had been able to testify; and
The offence involved the homicide of the deceased (See R. v. Praljak, supra, and R. v. Hall, 2011 ONSC 5628)
[33] I have no difficulty in concluding that the first criterion is met. I appreciate that the paramedic, Ms. Hardt, testified that the patient was responsive, combative and conscious when she first arrived on the scene. However, in my view the nature of the injuries suffered by Mr. Kumar (severed neck, intestines spilling out, and stabbed 29 times) were grave. A reasonable person in the same position would have had a settled, hopeless expectation that they were about to die. (See R. v. Buffalo, [2003] A.J. No. 1738 (Q.B.) and R. v. Mulligan (1973), 1973 2368 (ON SC), 23 C.R. (N.S.) 1 (Ont.S.C.), affirmed (1974), 1976 23 (SCC), 18 C.C.C. (2d) 270 (Ont.C.A., affirmed (1976), 28 C.C.C. (2d) 266 (S.C.C.)). Ms. Hardt testified that up to that point in her career she had never seen a patient with the same amount of injuries.
[34] The third and the fourth criteria have also been met. There can be no argument that if Mr. Kumar were alive he could provide his testimony as to what he meant when he pointed at Mr. Nurse and the charge is first degree murder.
[35] In my view, the second criterion is the real live issue. Based on the evidence that I have heard on the voir dire, the crown is arguing that the pointing here is an assertion by conduct that is essentially a statement about the circumstances of death.
[36] After considering the arguments of both counsel, I am satisfied that it can be inferred that when Mr. Kumar was pointing to Mr. Nurse he was making a statement about the circumstances of his death. Mr. Battagaglia argues that the pointing is equivocal and is not a statement. He argues that the Crown has not produced any authority where a court has considered a gesture as a dying declaration. I reject this argument.
[37] First, an out of court statement may be verbal, written or implied. An “implied statement” is any assertion not expressed by language, but rather is revealed through action (See D.M. Paciocco (now Paciocco J.) and L. Stuesser, The Law of Evidence, revised 6th ed (Toronto: Irwin Law, 2011), at p. 108). When Mr. Kumar was pointing at his abdomen and at Mr. Nurse, these were all assertions by conduct. (See also R. v. Perciballi (2001), 2001 13394 (ON CA), 154 C.C.C. (3d) 481 (at 520-521 (C.A.))
[38] Second, the pointing at Mr. Nurse cannot be taken in isolation but must be viewed as part of a chain of circumstances of which it formed a part. Those circumstances included:
*Mr. Kumar was found lying on the side of the Gore Road with 29 stab wounds and his neck almost severed;
*Mr. Kumar could not talk;
*Mr. Kumar had significant injuries to his abdomen;
*Mr. Nurse was at the scene and was approaching the officers and Mr. Kumar and asking “if Mr. Kumar was going to make it”;
*Mr. Kumar pointed to the injuries to his abdomen;
*after Mr. Kumar pointed to his abdomen, Cst. Mitchell grabbed his arms, but Mr. Kumar broke free, looked up, and pointed at Mr. Nurse.
[39] The total circumstances when viewed in their entirety permit a reasonable inference that the assertion by conduct here was about the circumstances of the death.
[40] I am satisfied that all of the criteria are met and that Mr. Kumar’s act of pointing at his abdomen and then subsequently pointing at Mr. Nurse fall within the dying declaration exception to the rule against hearsay.
[41] I want to stress that I have not ruled this evidence admissible. The parties only requested that I make a preliminary finding as to whether the gesture fell within the dying declaration exception to the rule against hearsay. I will hear further argument, if necessary, as to whether the conduct here also falls within the res gestae exception to the rule against hearsay or under the principled exception to the hearsay rule.
Coroza, J
Released: April 13, 2014