CITATION: R. v. Jha, 2015 ONSC 1645
COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015 03 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Andrea Esson and Jill Prenger for Her Majesty the Queen
- and -
NANDINI JHA
Dirk Derstine and Sharon Jeethan, Counsel for Ms. Jha
HEARD: February 23, 2015
Ruling on Admissibility of Autopsy Photos
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.
any document
Baltman J.
Introduction
[1] In September 2011 three year old Niyati Jha died from a severe skull fracture. Her mother, Nandini Jha, has been charged with second degree murder. The Crown alleges that she beat her daughter to death.
[2] Two weeks after the trial began counsel asked me to rule on the admissibility of various autopsy photographs that the Crown proposes to place before the jury. Neither counsel thought to raise this matter during the several weeks preceding the trial when I dealt with numerous motions concerning the admissibility of other evidence.
[3] The impugned photographs contain graphic details from the autopsy, including the brain and skull of the deceased after the scalp had been removed. Specifically, photos # 28 – 32 inclusive, 35 and 37 are in dispute.
[4] The accused objects to their admissibility on the basis that, given their explicit and disturbing nature, they will alienate the jury from her, and therefore any probative value they may have is outweighed by their prejudicial character. The Crown maintains they are essential to demonstrate the nature and extent of the injuries sustained, which in turns bears on whether they were inflicted deliberately or arose through accident.
[5] On February 24, 2015 I ruled the impugned photographs admissible, with reasons to follow. These are my reasons.
Legal Framework
[6] The legal framework is not in dispute. The trial judge must first determine the probative value of the evidence by assessing its tendency to prove a fact in issue. In other words, the trial judge must determine the purpose for which the evidence is proffered: R. v. Handy 2002 SCC 56, [2002] S.C.J. No. 57, para. 69; R. v. Kinkead [1999] O.J. No. 1498 (S.C.);
[7] Second, the judge must balance the probative value of the evidence against any prejudicial effect, such as its tendency to inflame jurors and thereby deflect them from deciding the case in a rational and objective manner: R. v. Wills [2007] O.J. No. 52 (S.C.), paras. 19 – 20. R. v. Liard, [2013] O.J. No. 4000 (S.C.), at para. 158. This is of particular concern in this already emotional case, involving the death of a young child.
[8] The onus is on the defence to demonstrate that the prejudicial effect of the evidence outweighs its probative value: R. v Currie 2000 22822 (ON SC), [2000] O.J. No. 392, at para. 5. Finally, as part of this balancing exercise the judge should take into account the effectiveness of any limiting instructions.
Analysis
[9] This case is essentially about whether Niyati’s fatal injuries were caused intentionally or by accident. If they were intentional, the accused is strongly implicated, as there is compelling evidence that she had exclusive opportunity to cause the injuries.
[10] The Crown maintains that the photographs are necessary to demonstrate the number and severity of the injuries, and thus permit the jury to infer that Niyati’s death was deliberate. The Crown’s case is circumstantial and depends to a great extent on the medical evidence establishing that the injuries were intentional and not accidental. The Crown’s theory is that the number, location and severity of the blows demonstrate a level of aggression consistent with murder.
[11] The defence argues there is no dispute here as to the cause of death or the severity of the injuries sustained. Everyone agrees Niyati died from a blunt force trauma to her head that caused numerous skull fractures and resulted in a severe brain injury. Consequently, goes the defence, the photos add nothing to the Crown’s case but instead carry the risk of horrifying the jury and thereby turning it against the accused.
[12] It is one thing for the defence to admit Niyati sustained a serious brain injury and quite another to view these photographs. I say that for two reasons: first, the photos, through their colour and detail, illustrate the range and severity of the specific injuries to Niyati’s head in a way which words cannot do; second, it would be extremely difficult, if not impossible, to follow the medical evidence without the photographs. The pictures correspond directly to the pattern and severity of injuries that the doctors are describing. A diagram would not suffice because it bears little reality to what the doctors actually based their findings upon, i.e. the extreme damage to the deceased’s actual brain and skull, including numerous sites of fracture, bleeding and bruising. It is apparent from the doctors’ testimony at the preliminary hearing that they legitimately required the photos in order to explain their findings. And those findings, in turn, are critical to the Crown’s theory of the case, namely that these injuries were inflicted deliberately and not by accident.
[13] For similar reasons I reject the accused’s alternate argument, namely that the photos be presented in black and white rather than colour. The severity of the injuries, manifested in part by the fracture lines in Niyati’s skull and the extensive bleeding into her skull and brain, cannot be properly appreciated in shades of grey. For example, the sites where bleeding was located vary in colour from moderate red to dark brown, according to the severity of the injuries.
[14] At this point it is not clear what the defence approach is to this case. Other than an incident approximately one month before Niyati’s death, where a bookcase allegedly fell on her head, there is no alternative explanation for her injuries. Moreover, as I noted above, there is compelling evidence that the accused had exclusive opportunity to cause these injuries; she was Niyati’s primary caregiver and no other person was ever alone with Niyati.
[15] In these circumstances the photographs are highly relevant to the issues of intent and deliberation. The nature of the injuries, as reflected in the photographs, is potentially powerful evidence that the accused intended to kill or at least harm Niyati. The evidence thus tends to rebut the defence of accident.
[16] In sum, the photographs contain significant probative value, in that they:
a) Demonstrate the nature and extent of the numerous skull and brain injuries;
b) Illustrate facts upon which the Crown’s medical experts base their opinions as to the cause of death;
c) Provide information from which inferences could reasonably be drawn by a jury regarding intent on the part of the accused.
[17] I agree the photos are disturbing to view. However, I do not believe the photos are so inflammatory that they would alienate the jury to the point that it would disregard other evidence or my instructions regarding their sworn duties of deliberation. This is particularly so given their limited number, my stipulation that the jury not be exposed to them for longer periods than necessary[^1], and a cautionary instruction to the jury that they must assess the evidence objectively and not be swayed by any emotional response they may have.
[18] For those reasons I ruled the impugned photos admissible.
Baltman J.
Released: March 25, 2015
CITATION: R. v. Jha, 2015 ONSC 1645
COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015 03 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NANDINI JHA
Ruling re: Admission of Autopsy Photos
Baltman J.
Released: March 25, 2015
[^1]: See R. v. Downs 2014 ONCA 20, para. 51