COURT FILE NO.: 47/17
DATE: 20180605
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Malcolm Copeland
A. Khoorshed, for the Crown
E. Sapiano and A Trica, for the Accused
HEARD: June 1, 2018
REASONS FOR DECISION
Admissibility of scene and autopsy photographs
Woollcombe J.
Introduction
[1] The accused, Malcolm Copeland, is charged with second degree murder in connection with the death of Elizabeth Nugent on October 27, 2014.
[2] The Crown brings a motion to determine the admissibility of two proposed power point presentations of photographs that he wishes to adduce before the jury.
[3] The first power point presentation includes 19 photographs taken at the scene where Ms. Nugent’s body was discovered. The Crown wishes to adduce these photographs when one or more of the police officers who attended at the scene testify.
[4] The second power point includes two of the same photographs as the first power point, as well as other photographs taken during the autopsy of Ms. Nugent. It has a total of 24 photographs. The Crown wishes to adduce these photographs when Dr. Allison Edgecombe, the forensic pathologist who conducted the autopsy on Ms. Nugent’s body testifies.
[5] On the motion, the Crown filed an Application Record with the two proposed power point presentations, Dr. Edgecombe’s testimony from the preliminary inquiry and Dr. Edgecombe’s Report of Postmortem Examination dated December 17, 2014. In addition, I was provided with a casebook of six Ontario judgments in which the relevant legal principles are set out and applied.
[6] In response, the defence filed a one page document in which counsel identified the specific photographs that he objected to the Crown putting before the jury and brief reasons as to why. Generally, it is his position that the photographs to which he objects are not relevant, are redundant, or that their prejudicial effect outweighs their probative value.
[7] Counsel then both made oral submissions as a result of which the differences in their positions became somewhat narrower.
The Applicable Legal Principles
[8] Photographs of a murder scene and of a deceased person may be relevant in a murder trial for a number of reasons. Relying on R. v. Schaefler, [1993] O.J. No. 71 (Gen Div); affirmed [2002] O.J. No 647, Fuerst J. summarized some of these in her decision in R. v. Wills 2007 CanLII 239 (Ont.S.C.J.) at para. 19:
19 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.
[9] It is well established that whether such images are admissible turns on balancing the probative value of the photographs with their prejudicial effect: R. v. Schaefler, [2002] O.J. No. 647 (C.A.) at para. 8; Wills, at para. 20; R. v. Granados-Arana, [2017] O.J. No. 2578 at para. 4; R. v. Rafferty, 2012 ONSC 1098). The persuasive burden is on the accused to establish that this sort of presumptively admissible evidence should be excluded because its prejudicial effect outweighs its probative value: Granados-Arana at para. 4, Wills at para. 22.
[10] In assessing the probative value of this type of evidence, the court must consider the relevance of the photographs and the purpose for which they are being introduced, given the myriad of possibilities as to how such evidence could be relevant and probative for the jury. The court must consider the tendency of the photograph to prove a fact in issue in the case, including the credibility of a witness.
[11] Prejudice, in this context, refers to the danger that the jury will use the evidence of the photographs for purposes other than drawing the inferences and conclusions for which they are introduced, despite instructions that make clear the purpose for which the photographs are admitted. More specifically, the concern is that the graphic nature of these sort of photographs may mean that jurors are unable to resist becoming inflamed with revulsion or hatred towards Mr. Copeland and will, as a result, become inflamed, unable to follow their oath or affirmation and will decide the case on some basis other than the evidence before them and legal instructions from me.
[12] While there is a danger that graphic, disturbing photographs may invoke very strong feelings in the minds of jurors, there is no doubt that, through such forums as television, movies and the internet, members of the public are much less sensitive to gruesome images than they might have been a generation ago. I agree with and adopt the comments of Heeney J. at paras. 22-23 of his decision in Rafferty respecting the manner in which members of the public have become desensitized to graphic images of death and blood:
22 In my view, the degree to which the average juror will be inflamed by graphic photographs has been much diminished in recent years, due to the frequency with which they are bombarded by such graphic images on television and at the movies. As Laforme J. (as the then was) observed in R. v. Kinkead, [1999] O.J. No. 1498 (S.C.J.) at para. 17:
In my view, and in my experience, juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. It is certainly true that we live in a time when communications are extraordinarily rapid, comprehensive and complete. The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination.
23 Those comments were made thirteen years ago, and the "deluge" has since become a virtual tsunami. Forty years ago, images such as these might have caused an average person to recoil in shock and horror, because they would never have seen such things before in their lives. Today, that is no longer the case. The general public has, in my view, become largely desensitized to graphic images of blood, death and destruction.
The Photographs at Issue
[13] I shall now consider each of the photographs that has been the subject of submissions during the Crown’s motion. I shall first consider the photographs in the first power point, those identified as the “scene photographs”. I shall then consider the photographs that are in the power point presentation proposed to be used when Dr. Edgecombe testifies, identified as the “autopsy photographs”.
a) The scene photographs
i) Photograph 7403
[14] The first photograph to which the defence objects is 7403, a photograph depicting the deceased’s body on a bed and a box-cutter type of knife on the floor. Counsel says that this photograph adds nothing, given that it captures that which will already be before the jury in photographs 7398 and 7399. The defence position is that this photograph is, effectively, redundant.
[15] The Crown says that redundancy is not a proper basis upon which to exclude photographs and that if the previous two photographs are admitted, there is no further prejudice caused by the admission of photograph 7403.
[16] I accept that redundancy is not the legal test. But, in my view, if the Crown intends to introduce photograph 7398 and 7399, there is virtually no probative value in also introducing 7403. There is, in my opinion, real potential prejudice caused by unnecessary repetition of the same gruesome scene images of the deceased’s body on the bed surrounded by blood. I conclude that if the Crown wishes to introduce photograph 7398 and 7399, the prejudice of also introducing 7403 outweighs its probative value. If, however, the Crown prefers to introduce photograph 7403, is should not introduce photographs 7398 and 7399. I leave that decision to the Crown.
ii) Photograph 7469
[17] The next photograph to which objection is taken is 7469, an image of the deceased’s feet. The defence says that her feet have no relevance.
[18] The Crown says that there is nothing disturbing about this photograph. Further, he submits that the photograph has a high probative value because it shows that the deceased did not have blood on the bottom of her feet. This is probative of where she was before she was killed and whether, and at what point, she may have been moved by Mr. Copeland, particularly when other photographs depict a substantial amount of blood on the floor beside the bed.
[19] In my view this photograph is probative and the prejudice from its admission is virtually non-existent.
[20] Photograph 7469 is admissible.
iii) Photograph 7407
[21] The next photograph to which the defence objects is 7407, which depicts the deceased’s feet on the bed and the bedclothes on the floor beside her. Initially, it was the defence position that this photograph was irrelevant and so not probative because all it depicted was the deceased’s feet. Once defence counsel understood that the Crown was tendering it for the purpose of showing where the bedcovers were, Mr. Sapiano indicated that he appreciated the probative value of the photograph and withdrew his opposition to its admission.
[22] Photograph 7407 is admissible.
iv) Photograph 7458
[23] The next photograph to which objection is taken is 7458. This photograph depicts the deceased having been moved onto her side on the bed. It shows her genital and pubic area.
[24] The defence position is that this photograph is not relevant because it does not depict the manner in which the deceased was found. Counsel also expressed concern that the photograph unnecessarily intrudes on the dignity of the deceased.
[25] The Crown agreed to place a black block over the deceased’s genital area in the photograph that will be shown to the jury in order to protect her dignity. It is the Crown position that, more generally, the probative value of this photograph is in showing that there was an absence of blood under the deceased in the position in which she was found in the bed. He wishes to demonstrate that most of her bleeding was beside the bed and not in the bed.
[26] In my view, there is a legitimate probative value in having this photograph before the jury. With the blocking of the deceased’s genital area for reasons of privacy, I find the prejudicial effect of the photograph to be minimal.
[27] Photograph 7458 is admissible, as edited by the Crown.
v) Photograph 7509
[28] The final scene photograph to which the defence objects is 7509, a photograph of the bed with the deceased’s body removed. It depicts some garments and the blood that was on the bed.
[29] The defence objection is that the photograph is not relevant and is more unnecessary blood.
[30] The Crown’s position is that the photograph is probative of the amount of blood on the bed when the deceased’s body was moved and, like the previous photograph, is important for the jury to assess in determining where the deceased was when she was killed and whether her body was moved by Mr. Copeland.
[31] In my view, this is not an additional, gratuitous photograph of blood. How much blood was visible in various locations may well assist the jury in determining what happened before and after Ms. Nugent was stabbed. I do not see this image as particularly prejudicial.
[32] Photograph 7509 is admissible.
The autopsy photographs
i) Photographs 7403 and 7443
[33] Mr. Sapiano’s written objections included a concern that photographs 7403 and 7443 should be excluded from this power point because they were duplicates of what was already included in the scene power point. However, once he appreciated that the duplication was because the two power point presentations would be used during the examination of two different witnesses, and was to assist the Crown in the orderly presentation of this evidence, the objection to the admissibility of these photographs was withdrawn.
[34] Photographs 7403 and 7443 are admissible.
ii) Photograph 5882
[35] Following the defence objection to the admissibility of this photograph, the Crown indicated that he would remove it from the power point without the necessity of the court ruling on its admissibility.
iii) Photograph 5711
[36] Photograph 5711 is a close up photograph of the burgundy terrycloth robe that was tied around the deceased’s head. The defence objects to its admissibility on the basis that it is redundant and not relevant. Counsel submits that this is the same image as in other photographs and that it adds nothing to the collection of photographs or to the testimony of witnesses.
[37] The Crown submits that this photograph is not prejudicial. Moreover, he says that its probative value is in depicting the precise manner in which the robe was tied around the neck of the deceased, and that it is the only close up photograph that does so.
[38] In my view, there is probative value in the jury being able to see the manner in which the garment was tied around the deceased’s head. In her evidence at the preliminary inquiry, Dr. Edgecombe confirmed that this was the manner in which the bathrobe was around the deceased’s face. I see little prejudice to the accused in this image.
[39] Photograph 5711 is admissible
iv) Photographs 5724 and 5733
[40] These photographs are close up images of the deceased’s neck depicting the incise wounds to the right and left sides of her neck. Dr. Edgecombe testified that these were the first photographs that were taken of the neck injuries when the body was examined.
[41] The defence position is that the deceased’s face should be cropped from the image as it depicts blood, and is not relevant to the jury when it is looking at the wound.
[42] The Crown’s position it that the entire image is necessary to better show the size and location of the wounds. Counsel submits that perspective is lost if the facial features are removed.
[43] I accept that these are very graphic images of deep wounds in the neck of the deceased. These images can fairly be described as disturbing and quite gruesome. It is important, however, for the jury to understand and appreciate the extent and depth of the wounds as this is likely to be important in determining issues respecting the amount of force used and, ultimately, whether Mr. Copeland was acting in self-defence. There is, I find, real probative value in these images.
[44] At the same time, I appreciate the defence concern that the prejudicial effect of the images is increased by the depiction of the deceased’s face. There is, I find, little of her face in photograph 5724. To the extent that part of her face is in the photograph, I find that the prejudice is minimal. This photograph is admissible.
[45] With photograph 5733, I think there is more of the deceased’s face depicted than is probative. There is no reason for her eye, nose and mouth to be included. There is nothing probative about their depiction. I find that the prejudice would be alleviated by the removal from the image of the deceased’s mouth, nose and eye. Therefore, provided that the Crown makes best efforts to black out these parts of the deceased’s features, the photograph will be admitted. There is no need, in my view, to block off her ear as the presence of the ear will assist the jury by providing an image of precisely where the incision was. This photograph is admissible.
v) Photographs 5739 and 5742
[46] These photographs also depict the deceased’s neck injuries with her neck tilted to one side in each image.
[47] The defence position is that the photographs are “misleading and prejudicial” and that the “manner in which the head is positioned is repulsive”. Mr. Sapiano explains that in his view, the manner in which the neck is pulled aside so as to show the wound does not depict the head in its proper position. He says that these images should be excluded. His alternative position is that the deceased’s face should be blacked out from the image.
[48] At the preliminary inquiry, Dr. Edgecombe explained the probative value of these images. She said that tilting the head was to show another view of the injury and to expose the injured tissues underneath the incision. She said that it also assists in depicting the depth of the injuries. Crown counsel did indicate that he would make best efforts to remove the deceased’s face, including her ear, from the image so as to remove any prejudicial effect for the accused of this image.
[49] I see probative value in the jury understanding the depth and extent of the injury as this is likely to be important to their assessment of self-defence. While I see some prejudice to these photographs, in my view the compromise of removing the deceased’s face from these two images sufficiently overcomes that prejudice for the photographs to be admitted.
[50] With the blocking out of the deceased’s face, photographs 5739 and 5742 will be admitted.
Conclusion
[51] In the result, the Crown’s application to adduce the photographs is largely allowed, with the caveats set out in this ruling, because the probative value of the photographs exceeds their prejudicial effect. The Crown may present these in the photographs in the power point presentations through the appropriate witnesses.
[52] As the trial judge, it is my intention to caution the jury regarding the evidence in my opening remarks to them, at the time that the photographs are introduced and in my final charge. They will be instructed not to allow the evidence to prejudice their views of the accused or to interfere with the accused having a fair trial.
Woollcombe J.
Released: June 5, 2018
COURT FILE NO.: 47/17
DATE: 20180605
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Malcolm Copeland
REASONS FOR DECISION
Admissibility of scene and autopsy photographs
Woollcombe J.
Released: June 5, 2018