R. v. D.D.

2013 BCSC 2286 R. v. D.D.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D.D., 2013 BCSC 2286 Date: 20130926 Docket: 56600-2 Registry: Chilliwack Regina v. D.D. Before: The Honourable Mr. Justice Schultes Oral Ruling on Application to re-open Defence Case Counsel for the Crown: C.M. Lawlor Counsel for the Offender: P.J. Wilson, Q.C. Place and Date of Hearing: New Westminster, B.C. September 26, 2013 Place and Date of Judgment: New Westminster, B.C. September 26, 2013 [1] This is an application by Mr. D. to re-open the defence case in order to call Dr. Plunkett as an expert witness, to address some of the critical medical opinions that supported his conviction. [2] My reasons for convicting Mr. D. are reported at 2012 BCSC 1563, so I do not need to refer to them in extensive detail here. In essence, Mr. D. had the care of A.S., the two-and-a-half-year-old daughter of his then girlfriend. I was satisfied that A. was injured during the period of time that he was in charge of her, and that her injuries could only have been caused by the application of force by him. The conviction was in August of last year. [3] Mr. D. testified in the trial. I did not believe his evidence and I could not base any reasonable doubt on it, so the focus shifted to whether the Crown had discharged its burden of proving his guilt beyond a reasonable doubt. Critical to my conclusion that it had were medical opinions of

three Crown witnesses from Children's Hospital: Dr. Poskitt, a pediatric neuroradiologist; Dr. Lyons, a pediatric ophthalmologist; and Dr. Colborne, a pediatrician who has expertise in non-accidental trauma to children. [4] An important aspect of these opinions was the conclusion that A.'s injuries were inconsistent with any type of accident, in particular with a fall of the kind that she could have sustained from the various pieces of furniture in the family's basement suite. [5] Also important was the question of when A. would last have appeared "neurologically normal". I accepted her mother's evidence that she was behaving normally before she left Mr. D. in charge. Dr. Colborne's opinion, which I preferred on this point over Dr. Poskitt's, was that there would have been some abnormality in A.'s behaviour if she had sustained the injury earlier than the period in which Mr. D. was caring for her. [6] The chronology of this case before the trial began was that there had been a period of many months during which Mr. D., having lost the counsel who represented him at the preliminary inquiry, was implored by several judges to get new counsel. He did not do that. [7] The trial date was made peremptory on him -- to proceed with or without counsel. He ended up in custody on the first day of trial, having shown up late. I released him. [8] At that point I began to consider, given that

there was apparently no possibility that he would make the effort to get counsel, the extent to which he could address the complex medical issues that were going to arise. I concluded that with my assistance he could deal with the non-expert witnesses, such as his former girlfriend and the upstairs tenants of his suite, but that there was just no way that he could ever do anything meaningful to counteract the medical opinions on his own. So I appointed an amicus to assist him. The role of the amicus expanded from my initial order that he assist in the cross-examination of the Crown's experts, to assisting Mr. D. in giving defence evidence and making final submissions on his behalf. [9] Nothing that I am going to say on this application is meant as a criticism of the amicus, who did everything he could to assist Mr. D., under very challenging circumstances. [10] We proceeded through the trial. Although Dr. Plunkett's name came up in cross-examination by the amicus as an expert who holds opinions on non-accidental trauma to children that are contrary to those of the Crown's experts, Mr. D. himself was the only defence witness, and there was no expert evidence put forward in support of his denial of responsibility. [11] After I found Mr. D. guilty, the matter was put over until November of last year. At that point that he retained Mr. Wilson, who has presented the potential

defence evidence in the form of a report from Dr. Plunkett. The report's approach, which I found helpful, is that the critical pieces of expert opinion that underlay the conviction in my reasons were put to Dr. Plunkett, and he then gave his prospective opinion on each of them. [12] He is a forensic pathologist who is based in Minnesota. In preparing his report, he had A.'s medical records from Mission Hospital, Children's Hospital, and Sunny Hill Health Centre, including medical imaging studies from Children's, transcripts of the expert medical evidence, photographs of A. in her home, and my reasons for judgment. [13] The important points on which he disagrees with the expert evidence that I accepted are: · That A. would not have appeared neurologically normal after receiving these injuries; · That her injuries are inconsistent with a fall; · That two separate forces -- blunt trauma to the skull and a severe acceleration/deceleration -- were at work here; and · That only a human force, in other words, a person, could have been the mechanism of injury. [14] Dr. Plunkett's curriculum vitae is attached to his report and there is no question that he has extensive related experience. He refers to relevant literature and he himself has published and presented on infant injuries. [15] The test for re-opening a verdict after conviction is not in issue. Mr. Justice Joyce gave a helpful

summary of the applicable principles in R. v. Match, 2013 BCSC 848: [15] ... While the court has the jurisdiction to do so, it should only be exercised in the most exceptional of circumstances. In R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.) at p. 70, Martin J.A. said: at para. 12: [12] I see no reason why a trial judge who has made a finding of guilt on disputed facts is not also empowered to vacate the adjudication of guilt at any time before the imposition of the sentence, although it is a power which, I cannot stress too strongly, should only be exercised in exceptional circumstances and where its exercise is clearly called for. [16] In R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), where the accused sought to reopen the case after conviction and prior to sentencing to call evidence from two witnesses, the court set out the test as follows: [31] The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the

admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 2 Sask.R. 342 (C.A.).) That test is as follows: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases ...; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [32] These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial

or declare a mistrial. [16] The Crown opposes this application. [17] Crown counsel agreed with my suggestion during submissions that the decisive issue was going to be whether the necessary degree of diligence has been shown by Mr. D. and if it has not, whether the interests of justice nonetheless require me to allow a re-opening. [18] The Crown did make submissions on other points however, which I will also address. [19] Crown counsel points out certain shortcomings in the prospective evidence of Dr. Plunkett. The first of these is that he is offering opinions in areas that are said to be outside of his expertise as a forensic pathologist. His detailed description of how certain forces at play during an accidental fall could have produced the injuries to A. is argued to be more within the expertise of a mechanical engineer. His comments on matters falling within the Crown witnesses' areas of specialized training are also said to stray outside of his proper zone of knowledge. [20] I agree with Mr. D.'s counsel that this is a concern that needs to be resolved in a trial setting. If it were obvious on the face of the report that any of his opinions were clearly outside his expertise, I might view the matter differently, but I take notice of the fact that forensic pathologists are frequently called as witnesses in respect of injuries to the living, on the theory that their

expertise in determining causes of death, which involve the interaction of mechanical forces with human bodies, is also helpful to a degree in deciding what the mechanisms of injury were for people who did not die. If the Crown disputes some of the areas in which the defence seeks to have Dr. Plunkett qualified, the precise extent of his expertise will be something to explore in detail, but based on the material on this application I cannot find that he is unqualified to give the opinions in his report. In other words, his knowledge of the forces involved in these injuries and the physics of injuring a child generally may well be challenged, but it is not obviously lacking at this stage. [21] The other concern the Crown expresses is that Dr. Plunkett does not refer to all of the evidence of A.'s injuries in his report, and in particular he does not deal with her actual brain injury. Again, things that he did not take into account in arriving at his opinions may be significant fodder for cross-examination, but at this point the important consideration is that his report directly contradicts the evidence that I accepted in finding Mr. D. guilty. [22] Turning to the criteria for re-opening after conviction that were summarized in Match, the test for relevance of the new evidence is not an onerous one and in fairness Crown counsel did not really push the suggestion that this

evidence is not relevant. If it is accepted or raises a reasonable doubt it could undermine the opinion evidence that I accepted and lead to an acquittal. [23] It is also at least reasonably capable of belief. [24] It follows from what I have said already that if this evidence had been called at the trial and if I had either accepted it or found a reasonable doubt on it, it would have certainly affected the result. [25] As I have said, the question is really whether this evidence could have been adduced at trial by due diligence. Even if it could have been, should I still allow the application to prevent an unjust outcome? [26] Mr. D.'s counsel concedes, with welcome candour, that Mr. D.'s own approach to obtaining legal assistance for the trial was lamentable. [27] I ordered that his communications with the amicus would be protected from disclosure in a manner equivalent to solicitor-client privilege, so we do not know what decisions they reached about how the defence was to be presented. Crown counsel agreed very fairly that it would have been impossible for Mr. D. as a non-legally trained person to access a witness like Dr. Plunkett. The amicus made reference to Dr. Plunkett in cross-examination, but I do not know what advice he may have given about the need for defence evidence on the medical issues. It is also possible that the resources to retain such an expert were not

available. [28] At the end of the day, the answers to these questions are not determinative. This situation is not analogous to one in which an accused represented by counsel has conducted the trial in a certain way that they then wish to revisit after conviction. There certainly could have been some tactical thinking involved by Mr. D. and/or the amicus on the issue of expert evidence, but that would still fall far short of an accused and his own counsel reaching a considered decision on how to conduct the defence and then simply waking up after conviction to the conclusion that they should have done something different. [29] What Crown counsel really emphasizes is Mr. D.'s lack of diligence generally in pursuing his defence. He has finally retained experienced counsel, but only after being convicted. Such behaviour, she submits, is in keeping with his entire approach to this trial and is itself a tactical decision -- to do little or nothing until something adverse has occurred and only then try to reverse it. While conceding that Mr. D. faces a significant sentence if his conviction is maintained, the Crown says that the effective administration of our system of justice requires me to draw the line when a person chooses to do nothing and then seeks to evade the consequences of that choice. [30] Mr. D.'s counsel reminds me that appellate courts have brought flexibility to the

due diligence standard, and that even an offender who has failed to meet it ought not to be left stranded without a remedy if the new evidence could impact the justness of the conviction. I think he is correct. Our justice system does try to achieve finality at some point, but it does not do so at the cost of a miscarriage of justice, if that concern is raised by new evidence. [31] My conclusion is that if Mr. D. had been diligent and retained counsel in a timely way, that lawyer could probably have identified, if not Dr. Plunkett, then at least some opposing voice to the opinions that were offered by the Children's Hospital experts. [32] That said, in convicting Mr. D. I accepted certain expert opinions and while I strove to assess them carefully and to consider them in light of all the other evidence, a contrary opinion could have produced a different result. [33] I do not know what the ultimate weight of Dr. Plunkett's opinions might be, but I do not feel comfortable precluding them from consideration, given the more or less complete dependence of the outcome on the medical opinions that I received on behalf of the Crown. [34] In recent years the justice system has acquired an enhanced degree of awareness of and vigilance to prevent the danger that scientific evidence will produce unjust outcomes if it is not subjected to the most careful possible scrutiny and balanced

against any other credible opposing evidence that may be out there. [35] It is regrettable, and entirely attributable to Mr. D.'s inaction, that such a challenge to the Crown's expert evidence was not put forward before conviction, but in my estimation it is not too late in the process for it to occur. [36] For these reasons the application is allowed, the conviction will be set aside and the defence case will be re-opened for the hearing of Dr. Plunkett's evidence. [37] I think we should put aside for now the question of whether that will require the Crown to apply to re-call some of its previous witnesses. It seems quite likely that Dr. Plunkett will raise matters that some of the witnesses did not have an opportunity to comment on in their original evidence, and that fairness will require that those matters be put to them. [38] As Mr. D. is now in custody, there is an even greater need for promptness in bringing the case forward. I suggest that we select a fix date that will give Mr. Wilson enough time to determine how best to present Dr. Plunkett's evidence. I do not know if the Crown would be open to some type of video link or whether there are the means to bring him here in person, but my suggestion is we pick a date that is going to give everyone enough time to figure that out. Ms. Lawlor, if you know for a fact that you are going to need to make applications to re-call

Crown witnesses maybe we can schedule that in there too so that there is not a lag between Dr. Plunkett testifying and then you having to apply. So when should we do that? [SUBMISSIONS OF COUNSEL RE: MISTRIAL] [39] THE COURT: Yes, well, if you want make separate submissions for a mistrial, there is no elephant in the room about me continuing with the trial as far as I am concerned. The whole point of this exercise is there are more important things than a supposedly final decision having been reached. I do not know if you want to make them now or some other time, but if you need to make the submission that I have gone too far in my findings, that there is an apprehension that the reasons I gave preclude full consideration of the new evidence, I am happy to hear it. I do not want to dissuade you. I have to say that I did not really put my mind to the mistrial option and I will if you want to bring that submission back. [FURTHER SUBMISSION OF COUNSEL RE: MISTRIAL] [40] THE COURT: All right, thank you. I am sorry that I neglected to address that issue initially when I first gave these reasons and appreciate it being raised now. [41] There are two reasons why a mistrial might be considered here. [42] One is practical. Sometimes something happens in a trial that makes it impossible to make use of the evidence that has gone before it, because it fundamentally changes how that earlier

evidence would have been approached and alters the structure of the trial. Here we are facing something more straightforward -- re-opening the defence to call a further expert witness and then potentially allowing the Crown to re-call some of its experts in reply. I do not see it as involving any significant practical difficulties for counsel to present that evidence or any strain for me to reapply the criminal standard of proof based on it. [43] A mistrial could also be considered based on the principles set out in R. v. Katzenback, 2011 ABCA 318, which was cited by Crown counsel -- a sub-set of a reasonable apprehension of bias. [44] Obviously if the trier of fact feels too committed to their reasoning process, they should raise the issue, recuse themselves and declare a mistrial. Even if that state of affairs it not present, a judge should be alive to what a reasonable informed observer who had looked at all the facts would conclude about their ability to render an impartial decision. [45] On the first arm of that test, I do not feel that the reasoning process that I engaged in to find Mr. D. guilty is irrevocable or the product of such unshakeable conclusions that it cannot be reconsidered in light of new evidence. His counsel has characterized the situation correctly. I rejected Mr. D.'s evidence, but the focus was then on whether the Crown had met its burden, the

rejection of his evidence being a meaningless factor at that next stage. My assessment of the evidence led me to a state of belief that founded a conviction. It was very much an intellectual exercise. By that I do not mean an insensitive one -- I mean one that has involved various mental processes, assessing and balancing the relative weights to be attributed to pieces of evidence. [46] I do not myself anticipate any difficulty in incorporating into that process a new set of opinions and then re-assessing all the evidence in the same way. It is not a mechanical process but it is also not a process that was ever invested with anything that is impossible for me to step back from now. So my own view is that I can continue to hear the case and judge it fairly. [47] As far as the reasonable observer goes, I think that they would read my reasons in the way that I have just described. Credibility assessment was quite peripheral. The case would have stopped there if I had believed Mr. D.'s evidence or had a reasonable doubt based on it, but since neither of those occurred I went on to decide the case on the exact issue where battle will now be joined with Dr. Plunkett. I think it is clear from my judgment what I decided in convicting Mr. D. and why, and the observer can readily grasp how the new evidence that has been offered today could potentially affect my original reasoning. After doing so, I believe they would reach the same conclusion that I have, which my consideration of the new evidence in light of what has been heard thus far and my decision about whether the Crown has met its burden of proof can still be done in an unbiased and transparent way. [48] As a result, I am not going to declare a mistrial. The Honourable Mr. Justice T.A. Schultes