Her Majesty the Queen Crown - v. -, 2011 ABQB 341

Court of Queen ’ s Bench of Alberta Citation: R. v. Negasi, 2011 ABQB 341 Date: 20110520 Docket: 090815085Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Tesfai Negasi Defence Restriction on Publication: Permission having been given to the jurors to separate, information concerning this portion of the trial may not be published, broadcast, or transmitted in any manner before the jury retires to consider its verdict. See the Criminal Code , s. 648(1).

Editorial Notice: The restriction ended on September 7, 2011. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.E. Topolniski _______________________________________________________

I. Introduction [1] Mr. Negasi's jury trial for the murder of his wife and offering an indignity to a dead body begins next week. He hasconfessed to the killing and to dismembering his wife’s remains. He intends to plead guilty to offering an indignity to a dead body andadmit to the killing, which will leave intention as the key issues for the jury to decide. It is expected that the oral evidence will describethe crime and that doubtless, the jury will from that learn the details of the dismemberment and disposition of Ms.

Negasi's remains. [2] This Defence application concerns the exclusion of autopsy photographs that the Crown will seek to enter in evidence.After fruitful discussions, counsel have winnowed the number of disputed photographs from 40 to 14, agreeing that one of theundisputed photographs, number 32, will be cropped. [3] The Crown asserts that the photographs are probative and necessary for the jury for mainly two reasons: i. To assist in their understanding and assessment of the pathologist’s and some police officer's evidence; ii.

To assist in their assessment of after the fact conduct which the Crown contends is highly probative on the question of intention.In this regard, the Crown will urge that the manner in which Mr. Negasi conducted the dismemberment and wrapped Ms.

Negasi'sremains will be important after the fact conduct from which it will ask the jury to draw inferences concerning intention. [4] The Defence accedes that some of the photographs it has agreed should be admitted in evidence contain shockingdepictions (the most extreme being images of the victim's severed and crushed head with bulging eyeballs) to help the jury understandand assess the coroner's evidence.

As to the disputed images, it urges that they are either so gruesome as likely overwhelm the jury andlead to an unfair trial or, of such little probative value that they should, given their nature and the attendant risks, be excluded.

Itdisagrees with the Crown's view about the utility of the photographs as aids concerning after the fact conduct, offering the view that Mr.Negasi's confessions and intended plea to offering an indignity effectively negate any probative value. [5] The Defence suggested deferring this ruling until a voire dire was held to receive evidence from the coroner concerningwhich photographs he considers necessary for the jury to follow and assess his evidence.

I am grateful for the suggestion, but find thatafter hearing argument and reviewing the materials, I am positioned to give my decision today. [6] An overview of the relevant authorities offers guidance for the analysis. [7] As a starting point, it is trite that all relevant evidence is to be received by the trier of fact unless the evidence is subject toan exclusionary rule (R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577 at 609-11, 66 C.C.C. (3d) 321). [8] Counsel have referred me to a number of reported decisions where the courts have considered the admissibility ofphotographs or other types of evidence which have weighed the probative value of the evidence against the prejudicial effect it may haveupon the accused to a fair trial. (R. v. Bartkowski, 2004 BCSC 442, R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 at 347; R. v Kinkead, [1999]O.J. No.1498, R. v. Schaefler, 1993 CarswellOnt 3381, R. v Violette, 2009 BCSC 421; R. v. Ellard, 2005 BCSC 552; R. v.

Effert, 2011ABCA 145 , 2011ABCA 145, and R. v Arsoniadis, [2007]OJ No.1211). As one would expect, the outcomes discussed in theseauthorities are highly fact driven. [9] R. v. P. (R.) explains that the court should determine the probative value of the evidence assessing its tendency to prove afact in issue in the case, including the credibility of the witnesses and the prejudicial effect of the evidence because of its tendency toprove matters which are not in issue ... or because of the risk that the jury may use the evidence improperly to prove a fact in issue. Then,

it must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence islegitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of anylimiting instructions. [10] In Kinkead, LaForme J. observed (at paras, 17-18) that in applications of this nature the prejudice alleged must be based uponcontemporary common sense and have an air of reality to it.

He went on to say that unless common sense or some other proof indicatesthe contrary, the court should be mindful that juries respect and abide by their sworn duties and comply with the instructions of the court.After reviewing the images at issue, some of which were highly graphic and disturbing, all but some particularly disturbing images of agaping throat wound were found to be admissible. [11] Schaefler summarizes when photographs are admissible and relevant to the issues as these (at par. 24): 1) to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions; 2) to illustrate minutiae of objects described in the testimony of a witness, i.e.; to show the nature and the extent of the wounds; 3) to corroborate testimony and provide a picture of the evidence and to assist jury in determining its accuracy and weight; 4) to link the injuries of the deceased to the murder weapon; 5) to provide assistance as to the issues to intent and as to whether the murder was planned and deliberate; 6) to help the jury determine the truth of the theories put forth by the crown or defense, e.g.; as to which accused committed thecrime; as to whether the crime was committed in self-defence. [12] In both Kinkead and Schaefler, the court commented on considerations concerning the impact of public exposure to violentimages in the media and popular entertainment and the value of limiting instructions. [13] In Violette, Rommily J. gleaned these conclusions from a review of seven authorities that include Ellard, Schaefer,Bartkowski, Arsonidias, and Ansari: 1) The bar for excluding evidence because of its shocking nature is high; 2) The typical basis for exclusion is duplication or unnecessarily belabouring horrific aspects of the evidence because the probativevalue of redundant evidence is extremely low; and 3) The analysis is highly context driven, with the probative value and prejudicial effect of the evidence depending entirely on thenature of the evidence and the live issues in the trial and assessment of the impact of the evidence on the trial process as a whole. [14] As in the present case, the sole issue for the jury in R. v.

Teerhuis-Moar (Sydney), (November 15, 2010) 2010 MBCA 102, 263 C.C.C. (3rd) 100, [2010] 1 W.W.R. 189, [2010] M.J. No. 342 (QL), 2010 CarswellMan 638 (Man.C.A. No. AR09-30-07086; 2010 MBCA 102) leave denied (May 19, 2011) [2011] S.C.C.A. No. 18 (QL), 2011 CarswellMan 23 (S.C.C. No. 34051)was intention in a killing and dismemberment case. The accused was convicted of a grisly murder where the victim was stabbed 68 timesin the chest, neck and upper arms. He was disembowelled, decapitated, dismembered, eviscerated and chopped into eight pieces. Hedefended on the basis of intoxication and lack of intent.

[ 15 ] The Manitoba Court of Appeal found no error in letting the jury see gruesome police photos, noting that it was relevant to the issue of intent and also was explanatory of some of the statements and letters of the accused. [ 16 ] As in the present case, the accused in R. v. Teerhuis-Moar urged that there was no need for the photographs as there was viva voce evidence of the police and the forensic pathologist, including his report, arguing that therefore that the probative value of the photographs was minimal, but that their prejudicial effect against him was substantial.

The Crown's position was that the accused ’ s intent was demonstrated by a number of things, including the elaborate manner of the dismemberment, urging that the photographs better demonstrated this than words or reports.

There were other issues concerning a letter that he had written that are not germane to the present inquiry. [ 17 ] The Manitoba Court of Appeal agreed with the trial judge ’ s reasoning that despite the potentially prejudicial nature of the graphic photographs, they showed the nature and extent of the injuries sustained by the victim, but also depicted “ in the clearest of ways what the Crown argues must have been the elaborate, deliberate and precise steps taken by the accused to mutilate the victim's body ” .

It also agreed that given the issue of intention any evidence that goes to the accused's intent or state of mind is both relevant and probative ” ( 2009 MBQB 22 , 237 Man.R. (2d) 26 at para. 69 at paras. 70-71 ). II. Analysis [ 18 ] Guided by these principles and with the legal backdrop I turn to the analysis. [ 19 ] At this stage of the proceedings, it is premature to conclude, as the Defence urges, that the photographs depicting the dismemberment and disposal of Ms. Negasi ’ s remains are irrelevant in light of Mr.

Negasi ’ s confession to the police and intended plea to the charge of offering an indignity to a dead body. The issue of intention nevertheless remains at the fore. [ 20 ] The Crown ’ s intention in adducing the photographs is to assist the jury in following, understanding, and assessing the oral evidence of the pathologist and police witnesses - all recognized rationale for admitting such evidence. It urges that the photographs are likely to help the jury determine the truth of the theories put forth by the Crown and Defence, particularly as they relate to intention.

In my view, the main issue on this application is not whether the photographs are probative, but whether the probative value outweighs the prejudicial effect, if any. [ 21 ] The photographs can be categorized into two main groups - those that are not shocking and those that are. 1. Images that are not shocking which the pathologist is likely to refer to in oral evidence: a. Photographs 96 and 112 are close up images of bruises. They are not any more shocking than photographs of bruises adduced in many assault cases. I cannot imagine that the jury would be overwhelmed by them. b.

Photographs 94, 101 and 115 depict wounds at open cartilage and joint areas. Again, I would not expect a jury to be overwhelmed by them. Moreover, and as I have already said, it is premature to ignore or minimize the import of after the fact conduct because of Mr. Negasi ’ s confession to the police and his intended plea. 2. Shocking images that the pathologist is likely to refer to in oral evidence:

a. Photographs 43 and 86 depict bruises on severed body parts, an upper arm and torso respectively. The prejudicial effect of these images does not outweigh their probative value. Given that the Crown's intended purpose for their introduction is to have the jury betterfollow the pathologist's evidence concerning the bruising, a simple solution is to crop the photographs to the bruising. The parties agree that this would be a reasonable approach for photograph 86.

This process was not, however canvassed concerning photograph 43 which depicts a bruise on a severed upper arm with material at one end, which the Crown suggests could be grass. I do not know if that is germane to the Crown ’ s theory of the case or a fact in issue. Surely, the bruise could be isolated by cropping. On the conclusion of my delivering this decision, I invite counsel to revisit photograph 43 to discuss that further. b. Photographs 26, 40, and 120 are photographs of severed body parts laid on an examination table. Photograph 120 depicts all of Ms. Negasis's remains pieced together.

The Crown accedes that if photograph 120 is admitted, the others would be redundant for the purpose of aiding the jury in following the pathologist's evidence and assessing after the fact conduct. I reiterate - the Crown's theory concerning the relevance and importance of after the fact conduct cannot now be summarily dismissed. The prejudicial effect of this photograph can be addressed by limiting instructions to the jury. Relevant also in this regard is the high level of confidence that we have in jurors to obey they oath and dutifully discharge their duties.

In the result, photographs 26 and 40 are to be excluded as being unnecessary and photograph 120 is to be admitted. c. Photographs 19, 20, 38 and 89 are images of plastic wrapped or bagged body parts recognizable as human remains. It is expected that police identification team officers will refer to this evidence, and it may be that the pathologist will as well. All but photograph 89, a picture of a severed and split body

part lying atop plastic material show the apparent care with which individual body parts were wrapped or packaged. But for photograph 89, the images are relevant to after the fact conduct, and on balance, their probative value outweighs their likely prejudicial effect. The body part depicted on photograph 89 is included in the composite photograph 120 (although the cleaving is not apparent). It is not highly probative for the issue of "packaging" the remains and is somewhat duplicitous. Accordingly, it is to be excluded. III.

Conclusion [ 22 ] Subject to the exceptions noted, being photographs 26, 40, and 89, and hearing further from counsel about photograph 43, the photographs the Crown seeks to introduce are admissible. Heard on the 18 th day of May, 2011. Dated at the City of Edmonton, Alberta this 20 th day of May, 2011. J.E. Topolniski J.C.Q.B.A. Appearances:

Tania Holland for the Crown Peter Royal, Q.C. for the Defence