R v Martin (No 9)

On 5 October 2017 (the twenty-second day of the trial) the Crown sought to ventilate the admissibility of certain evidence to which the accused took objection. The evidence comprised of a number of photographs depicting a samurai sword (correctly called a katana) and various rulers demonstrating the dimensions of the weapon. Originally, the accused complained that there was an excessive number of photographs (19). [1] The Crown then indicated that the exhibit had been culled down to 11 photographs. Having been shown the array of 11 photographs, the accused raised no objection to two photographs (numbered 1 and 2) depicting the length of the sword. The accused raised no objection to one of two photographs depicting the width of the blade at the hilt of the sword (photographs 3 and 4). The position seemed to be that one or other of the photographs was admissible but not both. It is clear that photograph 4 is merely designed to demonstrate where the measurement depicted in photograph 3 was taken. If one of the photographs is admitted, the other is clearly necessary for the jury to understand the location of the measurement. I indicated as much in argument and no further reasons are necessary.

The bulk of the argument concerned the photographs numbered 7, 8, 9, 13, 14, 16 and 17. These show the width of the blade at its tip and at various points along the blade. One complaint concerned the number of photographs – there were said to be too many. The Crown Prosecutor indicated that he could lead the evidence orally without tendering the photographs themselves. [2] However, the more fundamental submission seemed to be that the measurements of the width of the tip was not relevant and may invite the jury to draw a connection between the measurements and part of the evidence given by a forensic pathologist that was admitted much earlier in the trial.

At the conclusion of the argument I ruled as follows: [3]

The jury had taken an extended (1½ hour) lunch break to allow this issue (and two others) to be ventilated and I indicated that I would deliver fuller reasons in due course. [4] These are those reasons.

It is necessary to understand the context in which the objection was taken and the unsatisfactory way in which this issue arose. In spite of an invitation for any evidentiary issues to be resolved before the jury was empanelled, no such issues were identified. However, on the twelfth day of the trial, that is the day before the forensic pathologist was due to give evidence, objection was taken to her providing an opinion that “some or all of the wounds could have been inflicted by a samurai sword”. [5] I allowed the evidence and delivered a short ex tempore judgment. [6]

The Crown alleges that the accused killed his father in the early hours of 13 June 2014 to obtain the proceeds of some insurance policies that were taken out earlier that year. The Crown will ask the jury to infer that the murder weapon was a katana. There is evidence that the accused was trained in the use of that weapon and purchased a katana from a martial arts instructor (Mr Friis) some time around 2007 or 2008 although the evidence is unclear on precisely when the katana was purchased. [7] There is also evidence that in around 2012, the accused showed a neighbour (Ms Steffensen) a “samurai sword”. [8] The police have been unable to locate the katana and there is evidence (also admitted over objection) from which the jury will be invited to infer that the accused was deliberately untruthful in relation to the whereabouts of the sword. [9]

The post mortem or autopsy report disclosed multiple wounds of two distinct types. First, there were a number of penetrating or stab wounds (where the depth of the wound is greater than its length on the skin surface). Second, there were a number of slashing or incised wounds (where the length of the wound on the skin surface is greater than its depth).

Dr Vuletic originally provided a report in which she stated the opinion that the stab wounds “did not show any particular characteristics to indicate the nature of the implement used” and that “the wounds to the head were most likely caused by an axe”. [10] There was an axe located at the scene with blood on it. It seems that the original police theory was that this axe was the murder weapon or at least one of the weapons used. Detectives later asked Dr Vuletic to amend her report and told her that investigating police had “determined” that the murder weapon was a samurai sword. [11] The pathologist provided an amended report stating the opinion (referred to above) that “some or all of the wounds could have been inflicted by a samurai type sword”. [12] The reference to the axe was removed, as was the sentence relating to the absence of “particular characteristics” in the wounds. In spite of these manifest deficiencies in this evidence, it was admitted over objection because the credibility of Dr Vuletic’s evidence, and the weight (if any) that should be given to her opinions, is a matter for the tribunal of fact (the jury) rather than for the trial judge. [13]

In the trial Dr Vuletic gave the following evidence concerning the wound she considered to be fatal: [14]

Later, the pathologist gave the following evidence as to the weapon that might have caused the wounds: [15]

I did not know then, and I do not know now, the basis upon which Dr Vuletic was asked “to assume that the width of the blade is between 2.5 and 3.5 centimetres.”

The pathologist’s evidence was subject to a substantial attack in cross-examination as to the appropriateness of amending her report “to suit the police case”. [16] At the end of the cross-examination, I asked some questions about the fatal wound and the assumed width of the blade of the katana: [17]

The pathologist was re-examined as follows: [18]

The evidence of the sword’s actual dimensions only came into existence recently. That is, the measurements of the sword were made, and the photographs taken, after the pathologist gave evidence. [19] No doubt it is calculated to correct the erroneous assumption that Dr Vuletic was asked to make in the course of her evidence in chief – that is, that the width of the katana was between 2.5 and 3.5 centimetres.

The katana that was measured was one that was purchased by the police from Mr Friis. Mr Friis gave evidence that the sword sold to police was the same type of sword that was sold to the accused (“a practical katana from Hanwei”) and that “they haven’t changed the model on that practical katana, it’s still the same today”. [20] It has not been suggested, in cross-examination or submissions, that the dimensions of the katana sold to police were different to the one sold to the accused.

I am unable to accept the submission that evidence of the length of the katana and evidence of its width at the hilt is relevant and admissible but evidence of its width close to the tip is not. As I understood the submission, it was suggested that the evidence would create unfairness to the accused. The precise nature of the unfairness was articulated in argument as follows: [21]

The Crown Prosecutor explained the relevance of the evidence as follows: [22]

It was submitted in response: [23]

Following these submissions, I asked counsel whether he might make submissions to the jury based on the erroneous assumption put to the doctor. The exchange was recorded as follows: [24]

There was no further response to my inquiry as to the possibility of the defence making submissions on the basis of the size of the fatal wound and the erroneous assumption put to the doctor.

The way this evidence was investigated and elicited is unfortunate (to say the least) in a number of respects. First, the circumstances in which the doctor came to provide an amended report, and change her opinion. Second, the failure of the investigators to measure the sword prior to the doctor providing an opinion or, at least, before she gave evidence in the trial. Third, the fact that the doctor was asked to give an opinion in evidence based on an erroneous assumption as to the dimensions of the sword. Even so, because of that erroneous assumption, the current state of the evidence is misleading. The Crown has made it clear that the evidence on this issue “goes no higher than that a sword of this nature could cause the injuries … this sword is not excluded as the type of sword that could cause the injuries”. [25] He went to say:

As to this last submission, the pathologist did not give evidence that the injuries were “consistent with being caused by the sort of sword that the accused had”. [26] As presently advised, I think that the highest the Crown can properly put any submission on this issue is that the opinion of the pathologist was that the type of sword owned by the accused “could” have caused the injuries and/or that the pathologist “thought” it was “possible”. [27] However, if I have misunderstood the evidence and the Crown seeks to go further I will hear further submissions on the subject prior to counsel addressing the jury.

The evidence was admissible because it corrected an erroneous assumption put to Dr Vuletic and eliminated or reduced the risk that the jury would be misled by evidence given on the basis of that assumption. The only relevant unfairness might arise from the fact that the evidence was tendered after the doctor and the seller of the sword gave their evidence. If there is any unfairness, it might readily have been cured by recalling any relevant witness for further cross-examination. [28] No application to recall the doctor (or any other witness) was made. This is perhaps unsurprising given the substantial attack made on the credibility of her opinion.

After I made the ruling referred to in paragraph [3] the evidence was elicited through Detective Edmonds and, with the exception of the two photographs (1 and 2) showing the length of the sword, [29] the photographs were not tendered or admitted into evidence. The evidence of the measurements of the width of the sword was given orally. [30]