i Index
Description Date Vol. Paqe
PART ONE - THE PLEADINGS
Indictment Sept. 9, 1959
Back of Indictment Sept. 9, 1959
Notice of Appeal to Ontario Court of Appeal filed on behalf of Steven Murray Truscott Oct. 10, 1959
Supplementary Notice of Appeal to the Ontario Court of Appeal filed on behalf of Steven Murray Truscott Jan. 7, 1960
Order in Council commuting sentence of death imposed upon Steven Murray Truscott to life imprisonment Jan. 21, 1960
Notice of Application for Leave to Appeal to the Supreme Court of Canada on behalf of Steven Murray Truscott Feb. 9, 1960
Order in Council referring the case of Steven Murray Truscott to Supreme Court of Canada, pursuant to Section 55, Supreme Court Act Apr. 27, 1966
PART TWO - EVIDENCE
Opening Remarks
Witnesses
CORPORAL JOHN WATSON ERSKINE (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne 1ly Re-examina tion by Mr. Hays Recalled - Examination in Chief by Mr. Hays
HELEN DOREEN BLAIR (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly ii Index
Description Vol. Paq?
SHIRLEY IHRPER (for Compla inant) Examination in Chief by Mr. Hays 1 118 Cross-examination by Mr. Donnelly 1 126
DR. JOHN LLYWELLY'N PENISTAN (for Coxpla inant) Examination in Chief by Mr. Flays Cross-examination by Mr. Donne l.ly Re-examina t ion by YxQ Hays
JOCELYNE GODDETTE (for ~omplainant) Exarriination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
INSPECTOR JGiR0L3 GRAHAM (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly Recalled Cross- examination by Mr. Donne lly Recalled Examination in Chief by Mr. Hays cross-examination by Mr. Donnelly Re-examina tion by Mr. Hays
PPC. DONALD TKEYBLAY (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Re-examina tion by Mr. Hays Recalled Examination .in Chief by Mr. Eays Cross-examination by Mr. Donnelly Recalled Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly Reca Zled Esamina t ion in Chief by Mr. Hays Cross-examination by Mr. Donnelly He-examina tion by Mr. Hays Recalled Examination ir?. Chief by Mr. Mays Cross-examination by Mr. Donnelly
MRS. DOREEN LJERVIS (for Complainant) Examination in Chief by Mr. Hays Cr oss-exarnina tion by Mr. Donne lly iii Index
~escription Vol. Paqe
CHARLES WILFRED GODDETTE (for Complainant) Examination in Chief by Mr. Hays
ROBERT LAWSON (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Re-examina t ion by Mr. Hays
KENNETH GEIGER (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
R0E;B HARRINGTON (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly
RONALD DEMARAY (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
MRS. ANN NICKERSON (for complainant) Examination in Chief by Mr. Hays Cross-examination by Mr, Donnelly
MRS. DOROTHY BOHONUS (for Compla inant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
WARREN HATEIERALL (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly
STEWART WESTEY (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly
WILLIAM MCKAY (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr . Donne1 ly
RICHARD GELLATLY (for Complainant) Examination in Chief by Mr. Hays 2 350 I Cross-examination by Mr. Donnelly 2 357 Re-examina t ion by Mr. Hays 2 361 I iv Index
Description Vol. Paqe
MRS. BEATRICE GEIGER (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Reca lled Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly
SERGEANT WILLIAM MCCAFFERTY (for ~omplainan t) Examination in Chief by Mr. Hays Cross-examination by Mr.. Donnelly
PHILIP BURNS (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
MICHAEL BURNS (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
MRS. DONNA DUNKIN (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
ARNOLD GEORGE (for Complainant) Examination in Chief by Mr. Hays 3 3 96 Cross-examination by Mr. Donnelly 3 410 Re-examina tion by Mr . Hays 3 42 5
JOHN CAREW (for Complainant) Examination in Chief by Mr. Hays '3 430 @r oss-examina tion by Mr. Donnelly 3 432
LYN JOHNSTON (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly I LESLIE BALFOUR HARPER (for Complainant) Examination in Chief by Mr. Hays 3 448 Cross-examination by Mr. Donnelly 3 452 I BRYAN GLOVER (for complainant) Examination in Chief by Mr. Hays 3 460 I Cross-examination by Mr . Donnelly 3 469 - Re-examina tion by Mr. Hays 3 481 Re-cross-.examination by Mr . Donnelly 3 482 I v Index
Description Vol. Paqe
THOMAS GILLETTE (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Re-examina t ion by Mr. Hays
PAUL DESJARDINE (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly Re-examina t ion by Mr, Hays Recalled Examinati~n in Chief by Mr. Mays Cross-examination by Mr. Donne 1ly
GEORGE ARCHIBALD (for Complainant) Examination in Chief by Mr. Hays Cross-examina tion by Mr. Donnelly
LORRAINE WOOD (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
ANDREA BUCK (for Complainant) Examination in Chief by Mr. Hays
DOCTOR JOSEPH ALEXANDER ADDISON (for Complainant) Examination in Chief by Mr. Hays Recalled Examination in Chief by Mr. Hays Cross-examina tion by Mr, Donnelly Recalled re-exam, by Mr, Hays Recalled re-exam. by Mr. Hays Recalled Examination in Chief by Mr. Kays ~r oss-examination by Mr. Donnelly
DOCTOR DAVID HALL BROOKS (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Re-examina tion by Mr. Hays' Recalled re-exam, by Mr. Hays Recalled re-exam, by Mr. Hays Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Re-examina tion by Mr. Hays vi Index
~escription Vol. Paqe
SERGEANT CHARLES NORMAN ANDERSON (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly Recalled Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
PPC . HENRY DONALD HOEBS (for Complainant) ~xaminationin Chief by Mr. Hays Recalled Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly
SERGEANT ROY FRANK JOHNSON (for Compla inant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Recalled Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Recalled Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Re-examination by Mr. Hays
SERGEANT FREOERICK JOHN WHEELHOUSE (for Complainant) Examination in Chief by Mr. Hays Recalled Examination in Chief by Mr. Hays Cross-examina tion by Mr, Donnelly
CLARENCE TROTT ( for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Recalled Examination in Chief by Mr. Hays ~ross-examination by Mr. Donnelly
ALFRED SAUNDERS (for Complainant) Examination in Chief by Mr. Hays
GEORGE HO-MER THOMPSON (for Complainant) Examination in Chief by Mr. Hays vii Index
Description Vol. Paqe
JOSEPH H.L. PIGUN (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
MISS BEULAH WILKINS (for Complainant) Examination in Chief by Mr. Hays
SANDRA ARCHIBALD (for Complainant) Examination in Chief by Er. Hays Cross-examination by Mr. Donne lly Re-examination by Mr. Hays
AIDA ARCHIBALD (for Complainant) Examination in Chief by Mr. Hays Cross-examina tion by Mr. Donnelly
CORPORAL KEITH LIPSCOMBE (for Complainant) Examination in Chief by Mr. Hays Cross-esamina tion by Mr . Donne lly Recalled Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly
MRS. MABEL GRAY (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne lly Cross-examination by Mr. Donne lly
TEUNIS VABJDBNDOOL (for Complainant) Examinzition in Chief by Mr. Hays Cr oss-examina tion by Mr. Donne lly
GERALD DURNIN (for Complainant) Examination in Chief by Mr. Hays
CORPORAL ELMER SNELL (for Complainant) Examination in Chief by Mr. Hays Cross-examination by Mr. Donne 1ly
CORPORAL HARRY MOFFAT SAYEAU (for ~omplainan t) Examination in Chief by Mr. Hays Cross-examination by Mr. Donnelly viii Index
Description - Vol, Paqe
SHERMAN EWIN ERGWN (for complainant) Examination in Chief by Mr. Hays 5 92 7 Cross-examination by Mr. Dorrnelly 5 951 Re-examina tion by Mr. Hays 5 991 Re-cross-examination by Mr. Donnelly 5 997
PPC . JAWS ROBERT MOOM (for Complainant) Examins tion in Chief by Mr. Hays 5 1003 Cross--examina t-.ion by .Yr. Donne lly 5 1005
JOSEPH LEBEI, LEGER (for Complainant) Examination in Chief by Mr. Hays 5 1007 Cross-examination by Mr. Donne1 ly 5 1011
CORFORAI, GEORGE WILLIAM EDENS (for Complainant) Exa~ninationin Chief by Px. Hays Cross-examination by Vx . Donne lly
F/O GLEN IIESRZ: SAGE (for Complainant) Examination in Chief by Yx., Hays 5 1023 Cross--exanha tion by M.r. Donnelly 5 1035
MARJOR.XE JEAN GARDNER (fcr Complainant) Esamination in Chief by Mr. Hays Cross-examha tion by Mr. Donnelly
JOSEPH ChLYERT (for Accused) Examination in Chief by Yx. Donnelly Cross-examina tion by Mr. Hays Re-examina tion by Mr. Donnelly
DOCTOR BERmLY BROWN (for Accused) Examination in Chief by Mr ., Donnelly Cross-examination by Mr, Hays Re--e~.amination by Mr. Donnelly
GRACE CAREW (for Accused) Examination in Chief by Mr. Donnelly
GRANT CAREW (for Accused) Examination in Chief by Mr. Donnelly LESLIE SPILSBURY (for Accused) Examination in Chief by Mr. Donnelly Crcss-examin~tion by Mr. Hays ix Index
Description Vol. Paqe
GARY GILKS (for Accused) Examination in Chief by Mr. Donnelly Cross-examination by Mr. Hays
WILLIAM WILKES (for Accused) Examination in Chief by Mr. Donnelly Cross-examination by Mr. Hays
MRS. DORIS TRUSCOTT (for Accused) Examination in Chief by Mr. Donnelly Cross-examination by Mr. Hays Re-examina tion by Mr. Donnelly GENEVIEVE OATS (for Accused) Examination in Chief by Mr. Donnelly Cross-examination by Mr. Hays
MRS. MARTHA WOOD (for Accused) Examination in Chief by Mr. Donnelly
DOUGLAS OATS (for Accused) Examination in Chief by Mr. Donne lly Cross-examination by Mr. Hays Re-examina tion by Mr. Donne lly
ALLAN OATS (for Accused) Examination in Chief by Mr. Donnelly Cross-examination by Mr. Hays Re-examina t ion by Mr. Donnelly
GORDON LOGAN (for Accused) Examination in Chief by Mr. Donnelly 6 1193 Cross-examination by Mr. Hays 6 1199
DIANNE BEnRLEY GILLIES (for Accused) Examination in Chief by Mr. Donnelly Cross-examination by Mr. Hays Re-examina tion by Mr. Donne lly
PART III.,. 1 1 Index
Page First No. Description Referred to Paqe
PART 111 - EXHIBITS (All contained in Volume vII) Red button in envelope referred to (Not available) Not Printed
2 Photograph of scuff marks 1259
3 Negative of scuff marks Not Printed
4 Photograph showing Corporal Sayeau at a position where panties were found
5 Close-up of panties
6 Photograph looking south from seventy- five feet north of laneway
7 Photograph from fifty feet north of laneway looking in south-easterly direction
8 Photograph looking down laneway
9 Aerial view of area looking south from C.N.R. Railroad Bridge
10 Photograph looking in north-wester ly direction from aircraft
11 Aerial photograph looking north over the RaCeA,Fo Station
12 Photograph of bicycle tire impression
13 Photograph taken from point seventeen and a half feet north of tree
14 Photograph of bicycle tire impression 70 1270
Coloured photograph of car
Photograph of car with Quebec markers
Photograph taken from Birdge looking north xi Index
Page First No. Description Ref erred to Paqe
18 Photograph looking north from Bridge 77 1274
19 Photograph looking north from birdge of car bearing Nova Scotia license plates
20 Photograph looking north from bridge
21 Photograph looking north from bridge 1277
22 Photograph of stakes in bush 1278
23 Locket referred to (returned to family) Not Printed
24 Blood container referred to (Not available) Not Printed
25 Packette of leaves and twig referred to (Not available) Not Printed
26 Jar of stomach contents (Not available) Not Printed
27 Blouse referred to (Not available) Not Printed
28 Vest referred to (Not available) Not Printed
29 Container of blood from Lynne Harper (Not available) Not Printed
30 Container of finger nail scrapings (Not available) Not Printed
31 Bicycle frame without wheels (returned to Mr. D. Truscott) 360 Not Printed
Vial with screw cap (Not available) Not Printed
Registration application for vehicle permit covering license number 981 666 for year 1958
Registration of vehicle permit license 891 666 for year 1958
Registration of vehicle permit license number 189 666 for year 1958 xii Index I
Page First No, Description Referred to Paqe
36 Registration for motor vehicle permit license number 198 666 for year 1958 704 1282
37 Registration for vehicle permit of license number 819 666 for year 1958 704 1283
38 Registration for vehicle permit for license number 918 666 for year 1958 705 1284
39 Information laid under Juvenile Delinquents Act, June 13, 1959 759 1285
40 Information laid on Charge of Murder June 30, 1959 759 1286 I 41 Red Jeans (Not available) 769 Not Printed
42 Photograph of Lynne Harper
\ 43 Pair of shorts (Not available) 877 Not Printed
44 Right shoe (Not available) 878 Not Printed
45 Left shoe (Not available) 878 Not Printed
46 Sockee (Not available) 879 Not Printed
47 Sockee (Not available) 880 Not Printed I
48 Hairband (Not available) 880 Not Printed
49 Underpanties (Not available) 880 Not Printed
50 Branch turned over to Mr. Brown (Not ava ilable) 883 Not Printed I 51 Branch retained by Corporal Sayeau (not available) 884 Not Printed
Right shoe (Not available) Not Printed
Left shoe (Not available) Not Pr inted
Rear wheel of bicycle (returned to Mr. D, Truscott) Not Printed xiii Index
Page First No. Description Referred to Paqe
54A Front wheel of bicycle (returned to Mr. D. Truscott) 895 Not Printed
55 Underwear shorts (Not available) 895 Not Printed
56 Vial formerly marked "DM for identification (Not available) 896 Not Printed
57 Jockey shorts (Not available) 897 Not Printed
58 Plan of area 909 1288
59 Envelope containing hair of Lynne Harper (Not available) 918 Not Printed
60 Red shirt from Truscott Home (Not available) Not Printed
61 White shirt from Truscott Home (Not available) Not Printed
62 Pair of grey trousers from Truscott Home (Not available) Not Printed
63 Hunting knife (Not available) Not Printed
64 Envelope containing hair removed from Exhibit 53 (Not available) Not Printed
65 Pair If fawn trousers taken from accused at Huron County Jail (Not ava ilable) 921 Not Printed
66 Black and white shirt taken from accused at Huron C~untyJail (Not available) 921 Not Printed 67 Envelope containing hair of Stephen I Truscott (Not Available) 92 2 Not Printed 68 Envelope of hair pulled from I accused ' s head (Not available) 922 Not Printed i I xiv Index
Page First No , Description Referred to Page
69 Soilsamplefromsixincheswestof the right foot of the body (Not available) 924 Not Printed
70 Soil sample from field adjoining bush lot (Not available) 924 Not Printed
71 Soil sample (Not available) 924 Not Printed
72 Soil Sample (Not available) 924 Not Printed
73 Soil sample (Not available) 924 Not Printed
74 Soil sample (Not available) 925 Not Printed
75 Soil sample (Not available) 925 Not Printed
76 Soil sample (Not available) 926 Not Printed
77 Statement of William Wilkes, June 25, 1959
78 Statement of Douglas Oats, undated4 1175 1290
1 79 Photograph 1220 1291
PART IV - JUDGMENTS
Description Date Vol, Paqe
Order of the Ontario Court of Appeal dismissing appeal on behalf of Steven Murray Truscott Jan, 21,1960 VI 1258a
Reasons for Judgment of Ontario Court of Appea 1 Jan, 21,1960 VI 1258b Indictment, Sept. 9, 1959
PART I - PLEADINGS
CANADA) 1 PROVINCE OF 1 IN THE SUPREME COURT OF ONTARIO ONTARIO )
THE QUEEN
STEVEN MURRAY TRUSCOTT
T#E.-J;C6RORSuFOROUR LADY THE QUEEN PRESENT
THAT Steven Murray Truscott on or about the 9th day of June, 1959, at the Township of Tuckersmith in the County of Huron, did unlawfully murder Lynne Harper, contrary to the Criminal Code of Canada.
DATED at Goderich this 9th day of September 1959.
H, GLENN HAYS
Crown Counsel, Back of Indictment, Sept. 9, 1959
WITNESSES IN THE SUPREME COURT OF ONTARIO
1. Burns ROSS "FF" 2. J. McDonnell "FF" THE QUEEN 3. Corp. John Erskine "FF" 10 4, Jocelyne Gaudet "FF" VS 5, C, W, Gaudet "FF" 6. Robert Lawson "F" STEVEN MURRAY TRUSCOTT 7. Kenneth Geiger 8. Robb Harrington 9. Ronald Demaray 10. Helen Blair INDICTMENT 11. Mrs. Shirley Harper "FF" 12, Mrs, Anne Nickerson "FF" 13. Mrs. Doroth~Bohonis"FF" ...... 20 14. Warren Hatherall "FF" Stuart Westie 1. on or about the 9th day William McKay of June 1959 at the Town- Richard Gellatly "FF" ship of Tuckersmith in the Philip Burns "FF" County of Huron, did un- Michael Burns lawfully murder Lynne Mrs. Beatric Geiger Harper, contrary to the William McCaf ferty Criminal Code of Canada. Mrs, Donna Dunkin Arnold George "FF" Darrell Gilks ...... "True" Bill John Carew Lyn Johnston "FF" "Frank Falconer . Foreman Bryan Glover ...... Paul Desjardine "FF" I hereby consent to the within Thomas Gillette Indictment being preferred be- George Archibald fore the Grand Jury at this Lorraine Wood Sessions of the Supreme Court Andrea Buck of Ontario for the County of Leslie Harper Huron. Prov, Const. Donald Hobbs 35, Frederick J, Wheelhouse Dated, Goderich, September 14th 36, Alfred Sanders 1959, 37. George H. Thompson 38. Joseph Ho L, Pigeon ...... "R, I. Ferguson, J. " 39, Miss Beaulah Wilkins Judge 40. F/Sgt. Roy Johnson Po Se 41. Ada Archibald 16/9/59 "JC" Back of Indictment, Sept. 9, 1959
42. Sandra Archibald 43. Teunis Vandendool Sept 30/59 44. Prov. Const. D. Trumbley 45. Inspector H. Graham Verdict: 46. Dorene Jarvis 47. Gerald Durnin Guilty with a recom- 48. Keith Lipscornbe mendation for mercy. 49. Joseph Leger "FF" 50. George W. Edens "FF" "R. I. Ferguson, J. " 51. Glen Sage "FF" 52. Sgt. Charles Anderson 53. Corp. Harry Sayeau "FF" Sentenced to be hanged on 54. Corp. Helmar Snell December 8th 1959 55. Prov. Const. J.,Moore 56. Dr. John Penistan "FF" 57. Dr. David Brooks "FF" 30/9/59 "R. I. Ferguson, J. 58. Dr. J. A. Addison "FF" 59. Elgin Brown 60. John Funk 61. Corp. D. J. Alsop "FF" Notice of Appeal to Ontario Court of Appeal filed on behalf of Steven Murray Truscott, Oct. 10, 1959
IN THE SUPREME COURT OF ONTARIO
IN THE MATTER OF STEVEN MURRAY TRUSCOTT, convicted at Goderich by the Honourable Mr. Justice Ferguson with a Jury that he did on or about the 9th day of 10 June, 1959, at the Township of Tuckersmith in the County of Huron, unlawfully murder Lynne Harper, contrary to the Criminal Code of Canada, and is now a prisoner at the county jail in Goderich and sentenced to be hanged on the 8th. day of December, 1959
I hereby give you notice that I desire to appeal and 20 apply for leave to appeal to the Court of Appeal against my conviction on the following grounds: -
1. The verdict of the jury was contrary to the law.
2. The verdict of the jury was contrary to the evidence and the weight of evidence.
3. There was no evidence on which a jury, properly instructed, could render a verdict of guilty.
4. Crown Counsel, in his opening address, informed the jury that Steven Murray Truscott had given a statement to Inspector H. He Graham of the Ontario Provincial Police, which statement was found by the learned trial Judge not to have been given voluntarily and was not admitted in evidence.
5. The learned trial Judge improperly commented to the jury on the failure of the accused to account for his whereabouts between 7:25 and 8:00 p.m. on June 9th., 1959, 40 when there was no onus on the accused to so account for his time. I 6. The comment to the jury by the learned trial Judge, on the failure of the accused to account for his whereabouts I between 7: 25 and 8: 00 p.m. on June 9th., 1959 was in fact a comment on the failure of the accused to give evidence on his own behalf. I Notice of Appeal to Ontario Court of Appeal filed on behalf of Steven Murray Truscott, Oct. 10, 1959
7. The learned trial Judge failed to properly out- line to the jury the theories of the defence.
8. The learned trial Judge in effect dismissed the theories of the defence and in fact took the matter from the jury and substituted his own finding on the facts.
9. On such other grounds as may be disclosed by the evidence and the charge of the learned trial Judge.
I desire to present my case and argument by oral argument.
My address for service is c/o John O'Driscoll, Barrister and Solicitor, 320 Bay Street, Toronto, Ontario.
DATED this 10th. day of October, 1959.
"Steven Murray Truscottu
by his solicitor
"John O'Driscoll" Supplementary Notice of Appeal to the Ontario Court of Appeal filed on behalf of Steven Murray Truscott, Jan. 7, 1960
IN THE SUPREME COURT OF ONTARIO
IN THE MATTER of STEVEN MURRAY TRUSCOTT, convicted at Goderich by the Honourable Mr. ~usticeFerguson - with a jury on the 30th day of September, 1959, . that he did on or about the 9th day of June, 1959, at the Township of Tuckersmith in the County of Huron, unlawfully murder Lynne Harper, contrary to the Criminal Code of Canada, and is now a prisoner at the county jail in Goderich and sentenced to be hanged on the 8th. day of December, 1959
TAKE NOTICE that in addition to the grounds of appeal set out in the Notice of Appeal dated the 10th day of October, 1959, the following further grounds of appeal will be sub- mitted on behalf of the Appellant:
1. THAT the learned trial Judge improperly instructed the jury on the onus of proof and the doctrine of raasonable doubt.
2. THAT the learned trial Judge failed to properly comply with the sections of the Canada Evidence Act before allowing certain children to be sworn as witnesses.
3. THAT the learned trial Judge failed to define corroboration to the jury and failed to adequately instruct them as to what in law was capable of being corroboration.
4. Such further and other grounds as Counsel may advise and this Honourable Court may permit.
DATED at Toronto this 7th day of January, 1960. TO: Steven Murray Truscott, THE HONOURABLE THE ATTORNEY- by his Solicitors, GENERAL FOR THE PROVINCE OF 08~riscolland Kelly, ONTARIO, Suite 602, 320 Bay Street, Parliament Buildings , Toronto 1, Ontario. Toronto .2, Ontario. Order in Council commuting sentence of death imposed upon Steven Murray Truscott to life imprisonment, Jan. 21, 1960
P.C. 1960-87
CANADA
PRIVY COUNCIL
AT THE GOVERNMENT HOUSE AT OTTAWA
THURSDAY, the 21st day of JANUARY, 1960.
PRESENT:
HIS EXCELLENCY
THE GOVERNOR GENERAL IN COUNCIL:
The Governor General has been pleased to lay before the Privy Council the report of the Honourable Mr. Justice R. I, Ferguson, in the case of Steven Murray Truscott, who was tried before him at Sittings of the Supreme Court of Ontario, held at the Town of Goderich, during the month of September, 1959, for the crime of Murder; and having been convicted thereof, was sentenced to death - such sentence to be carried into execution on the eighth day of December, 1959; reprieved and execution of sentence postponed, by Order of the Court, to the sixteenth day of February, 1960.
The Governor General has also laid before the Privy Council a transcript of the evidence adduced at the trial and other documents relating to the case.
The circumstances of the case having been fully con- sidered by the Governor General in Council together with the report of the Solicitor General with respect thereto - 40 The Governor General is pleased to order and it is hereby ordered that the sentence of death so passed upon the prisoner be commuted to a term of life imprisonment in:.khe Kingston Penitentiary. Certified to be a true copy. R. B, BRYCE Clerk of the Privy Council. Notice of ~pplicationfor Leave to Appeal to the Supreme Court of Canada, Feb. 9, 1960 - --
IN THE SUPREME COURT OF CANADA
BETWEEN:
STEVEN MURRAY TRUSCOTT
Appellant
HER MAJESTY THE QUEEN
Respondent
20 TAKE NOTICE that an application will be made by Counsel on behalf of the Appellant, Steven Murray Truscott, before the Supreme Court of Canada in Ottawa, on Monday, the 22nd day of February, 1960, at 10: 30 o' clock in the forenoon or so soon thereafter as Counsel can he heard for leave to appeal to the Supreme Court of Canada from the unanimous judgment of the Court of Appeal of Ontario pronounced on the 21st day of January, 1960, affirming the conviction of the said Steven Murray Truscott by the Honourable Mr. Justice Ferguson and a jury at the Autumn Assizes of the Supreme Court of Ontario at 30 Goderich, Ontario, on the 30th day of September, 1959, on a charge that:
Steven Murray Truscott on or about the 9th day of June, 1959, at the Township of Tucker- smith, in the County of Huron, did unlawfully murder Lynne Harper contrary to the Criminal Code of Canada,
on the grounds that the said judgment of the Court of Appeal 40 for Ontario involves the following questions of law, namely:-
1. Was there any evidence of such a character that the inference of guilt of the Appellant might, and could, legally and properly be drawn therefrom by the jury? Notice Application for Leave Appeal the Supreme Court of Canada, Feb, 9, 1960
2. Was the Appellant deprived of a trial ac- cording to law by the remarks made by Crown Counsel in his opening to t@e jury?
3. Did the learned trial Judge err in allowing the Crown witnesses, Jocelyn Goddette, Arnold George, and Tom Gillette to be sworn?
4. Did the learned trial Judge err in failing to properly define corroboration for the jur y?
5. Did the learned trial Judge err in instruct- ing.the jury that certain unsworn witnesses were in fact corroborated?
6. Did the learned trial Judge err in his charge to the jury in regard to the doctrine of reasonable doubt?
AND FURTHER TAKE NOTICE that an application will be made to the Supreme Court of Canada to extend the time until the 22nd day of February, 1960, under Section 597 li (b) of the Criminal Code of Canada as enacted by Statutes of Canada, 1956, Chapter 48, Section 19,
DATED at Toronto this 9th day of February, 1960,
0 ' DRISCOLL AND KELLY, Suite 602, 320 Bay Street, Toronto 1, Ontario,
TO: Solicitors for the Appellant,
THE HONOURABLE, THE ATTORNEY-GENERAL 40 FOR THE PROVINCE OF ONTARIO, Parliament Buildings, Toronto 2, Ontario. Order in Council referring the case of S.M. Truscott to S.C. of Canada, pursuant to S. 55, S.C. Act, April 27, 1966
CANADA
PRIVY COUNCIL
AT THE GOVERNMENT HOUSE AT OTTAWA
TUESDAY, the 26th day of APRIL, 1966.
PRESENT :
HIS EXCELLENCY
THE GOVERNOR GENERAL IN COUNCIL,
WHEREAS there has been laid before His Excellency the Governor Ge'neral in Council a report from the Solicitor General substantiating
THAT Steven Murray Truscott was convicted at Goderich, Ontario, on September 30, 1959, of the murder of Lynne Harper and sentenced to death;
THAT Steven Murray Truscott appealed the said con- 30 viction to the Court of Appeal of Ontario by which Court the said appeal was dismissed;
THAT Steven Murray Truscott thereupon applied for leave to appeal to the Supreme Court of Canada by which Court the said application was refused, the Court at that time having jurisdiction to entertain such an appeal on questions of law only;
THAT on January 21, 1960, His Excellency in Council 40 was pleased to commute the sentence of death so passed upon Steven Murray Truscott to a term of life imprisonment in Kingston Penitentiary where Steven Murray Truscott is now confined;
THAT on September 1, 1961, Section 597A of the Criminal Code came into force whereby a person who has been sentenced to death and whose conviction has been affirmed by Order in Council referring the case of SeMo Truscott to S.C. of Canada, pursuant to S. 55, S.C. Act, April 27, 1966 the Court of Appeal may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact;
THAT there exists widespread concern as to whether there was a miscarriage of justice in the conviction of Steven Murray Truscott and it is in the public interest that the matter be inquired into;
THAT for the purpose of said inquiry the question hereinafter set out should be referred to the Supreme Court of Canada pursuant to Section 55 of the Supreme Court Act:
THEREFORE, His Excellency the Governor General in Council, with and by virtue of the authority conferred by Section 55 of the Supreme Court Act, is pleased to refer and doth hereby refer to the Supreme Court of Canada for hearing and consideration the following question:
Had an appeal by Steven Murray Truscott been made to the Supreme Court of Canada as is now permitted by Section 597A of the Criminal Code of Canada, what dis- position would the Court have made of such appeal on a consideration of the existing record and such further evidence as the Court, in its discretion, may receive and consider?
Certified to be a true copy
J, M, MILLIGAN
Assistant Clerk of the Privy council. Opening Remarks
PART I1 - EVIDENCE
OPENING REMARKS
MR, HAYS:
My Lord, I move for the trial of Steven Murray Truscott on this indictment.
HIS LORDSHIP:
Place the prisoner in the prisoner's box.
THE REGISTRAR:
Will the accused please stand?
\ You stand indicted by the name of Steven Murray Truscott that Steven Murray Truscott on or about the 9th day of June, 1959, at the Township of Tuckersmith, in the County of Huron, did unlawfully murder Lynne Harper, contrary to the Criminal Code of Canada,
Upon this indictment how do you plead, guilty or 30 not guilty?
THE ACCUSED:
Not guilty.
HIS LORDSHIP:
You are appearing, Mr. Donnelly?
MR. DONNELLY:
I am, My Lord.
THE REGISTRAR:
Are you ready for your trial? 13
Opening Remarks
THE ACCUSED:
Yes.
---Jury selected and sworn,
THE REGISTRAR:
Will the accused stand, please?
Gentlemen of the Jury, look upon the prisoner and harken to his charge. He stands indicted by the name of Steven Murray Truscott, that Steven Murray Truscott on or about the 9th day of June, 1959, at the Township of Tucker- smith, in the County of Huron, did unlawfully murder Lynne Harper contrary to the Criminal Code of Canada. Upon this 20 indictment he hath been arraigned, upon his arraignment he hath pleaded not guilty and for his trial has put himself upon his Country, which Country you are. Your charge, there- fore, is to inquire whether he be guilty of the indictable offence charged or not guilty and to harken to the evidence.
HIS LORDSHIP:
NOW, Gentlemen of the petit Jury, you have been sworn in this case and are therefore now seized with it, 30 This young lad that we are about to try is charged with murder, which is the most serious offence known to our law. The case is in the state where you or I have no alternative but to try this lad on this charge. That is the state of the law of this country. NOW, as far as the charge of murder, the Criminal Code directs me to see that you are kept to- gether during the course of the trial. NOW, unfortunately for you, that means that you will not be allowed to separate during the course of the trial and that you will not be allowed to go home or that sort of thing. You will be 40 required to stay together overnight until the trial is finished. The sheriff has made arrangements for your accom- modation at some place in Goderich, presumably at the hotel, and you will have to remain together overnight during the adjournments and you will be in charge of constables. I I expect that the arrangements have been made which will be satisfactory to you and that you will be made comfortable during the course of this trial. I Opening Remarks
Now, as you have to remain together, I am going to adjourn for a moment or two so as to permit you to give any messages you have to give to the sheriff, who will com- municate with the persons you want to communicate with. You will not be permitted to communicate yourselves with your home or with your places of business. You will have to give the messages to the sheriff or the sheriff's constable, who will be in charge of you. If you have your motor cars here, the sheriff will see they are looked after and put in a place of safety during the course of the trial, If you have any instructions whatever in connection with your business or your farms or anything of that sort, give them to the sheriff and he will see they are communicated to whoever you wish to communicate them to. Unfortunately you will not be able to communicate them yourselves. The law is that you are not permitted to communicate with anyone outside of your own group or the sheriff or me during the course of the trial,
NOW, I have to say to you that you will not be permitted to go to a theatre and you will not be permitted to have a radio and you will not be permitted to have a tele- vision. None of those things will be any hardship to you, I am sure. I have no objection to you having newspapers or any literature you wish, providing the sheriff scrutinizes the newspapers and takes from them any comments about this case, because your oath is to try this case in accordance with the evidence you hear in this Courtroom, The sheriff will look after any outing or exercise that you wish to take during the course of the trial, but unfortunately you will all have to keep together. NOW, that means you are not to communicate with anyone outside of your own group, You are not even to talk to the constables or the sheriff about the case. If you have any questions to ask about the case, I am the person to ask. Don't hesitate to stand up and ask any questions concerning the case you want to ask, but ask me. Don't permit anyone to speak to you during the course of this trial because if they do it is contempt of this Court and we will have to start the trial all over again.
Now, I hope you will be made comfortable and if you have heard any gossip about this case, as I am sure you have, I don't suppose it is possible to have lived in Huron County in the last two or three months without hearing some- Opening Remarks thing about it. Please dismiss it from your minds now be- cause you try this case in accordance with the evidence heard in this Courtroom. If you have read anything about it in the newspapers, please dismiss that from your mind now, because we can't try this case on newspaper comments or evidence or gossip we hear in the community.
Now, I am going to permit you to retire to your room now. I want you to leave the Courtroom at all times before the prisoner leaves the Courtroom and I want the public to remain seated until both you and the prisoner leave the Courtroom on each adjournment. I am going to let you retire now for fifteen or twenty minutes until you get your messages off and communicate with the sheriff.
--- Jury retired,
--- Accused retired.
--- Whereupon there was a short recess.
--- Upon resuming.
--- Prison returned,
--- Jury returned.
HIS LORDSHIP:
At this stage of the case, Gentlemen, Crown counsel will now tell you what the Crown's case is all about. He will do that because it will be that much easier for you to understand the evidence as you hear it. Sometimes it is not easy to call the evidence in absolutely chronological order and if you have an outline of the evidence ahead of time you will understand it that much better. What he says is not evidence, of course, but what he tells you, the evidence will be, that is what it is going to be. This is all done so that you will understand the evidence better as you hear it from the witness box.
MR. DONNELLY:
My Lord, might I ask that the witnesses be excluded. Opening Remarks
HIS LOFtESHIP:
Yes, All of the witnesses in this case will be excluded until called,
MR, DONNELLY:
I spoke to my friend and he asked that one or two people stay to assist him. Might I ask that the father of the boy and also the mother of the boy remain?
HIS LORDSHIP:
Yes.
MR. DONNELLY: 20 They may be witnesses and they may not, My Lord.
HIS LORDSHIP:
The parents of the boy will be allowed to stay in the Courtroom,
MR. HAYS:
30 Inspector Graham, to assist me, and Doctor Penistan, a Provincial Pathologist will possibly be about the sixth witness, and I feel he will be assisted in the presentation of his evidence by hearing evidence of one or two of the previous witnesses.
HIS LORDSHIP:
There is no objection to the professional wit- ness, Mr, Donnelly? 40 MR, DONNELLY:
If those witnesses will help my friend, I have no objection, My Lord.
HIS LORDSHIP:
Opening Remarks
'I is charged alone or jointly with another per son, "
This accused was born in January, 1945, and he is fourteen past and would be covered by that section, My Lord. 428 may also be of some assistance, My Lord.
HIS LORDSHIP:
What do you say that means, Mr. Donnelly?
MR. DONNELLY:
I suggest that 427 means that it would be a closed Court for the trial of a person under sixteen. 428 reads as follows :
" Exclusion of public in certain cases. The trial of an accused that is a cor- poration or who is or appears to be sixteen years of age or more shall be held in open Court, but where the Court, Judge, Justice or Magistrate, as the case may be, if of opinion that it is in the interests of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the Courtroom, he may so order. "
Publicity would mean, especially publicity in the press and over the radio, I would think, My Lord. Shall take place without publicity. There seems to be no exception to the rule. I have been unable to find any cases where there was any exception or practically any cases at all on the matter, Your Lordship. The rule does appear to be very 40 clear. It says:
" Trial shall take place without publicity, whether he is charged alone or jointly
with another pew-Laon, II
It falls squarely within the section, well under sixteen years of age. Opening Remarks
HIS LORDSHIP:
What do you say, Mr. Hays?
MR. HAYS:
My Lord, I am also puzzled by the word: "publicity", I looked at the Citator to see if there is any cases explan- atory of this point and I found nothing. My interpretation certainly isn't that section 427 calls for any trial in camera I respectfully submit that doesn't imply that. I would like to be of more assistance in the explanation of the word "publicity" than I feel able to do. It may or may not extend to a certain coverage in the press, radio and television. I just don't know. I would say this, My Lord, the only thing. I could find at all that might be of assistance was a case of Rex versus L. Y, , number one, found in 82 Canadian Criminal Cases, page 105. It was a decision of the Manitoba Court of Appeal, an Appeal from an order made by a Juvenile Judge who did not -- who sent the trial on by way of indictment. And reading from the judgment of Mr. Justice Dysart, they upheld the Juvenile Judge and said that the trial should be by way of indictment. Among the reasons, I quote from Mr. Justice Dysart, page 106:
" The alleged advantages of a private or secluded trial are offset by the danger of such a system of trial. The great safeguards of settled practice in Criminal Courts before a Jury, under the scrutiny of the public . . . "
HIS LORDSHIP:
What is the date of that case?
MR. HAYS :
1944, February 14th.
HIS LORDSHIP:
There is a new Code since then. Opening Remarks
MR. HAYS:
The section remains the same.
HIS LORDSHIP:
Exactly the same?
MR. HAYS:
Yes.
MR. DONNELLY:
I am familiar with the case. I forget if the accused was under sixteen, but there are some cases along 20 that line between sixteen and eighteen.
MR. HAYS:
I must confess my friend's point is good.
MR. DONNELLY:
He was eighteen.
HIS LORDSHIP:
That settles that.
MR. HAYS:
I wonder, My Lord, if it settles it one hundred per cent. There is reference ,, .
HIS LORDSHIP: 40 I have read that case and I am quite sure it does. Manitoba has some laws that a person up to eighteen is a juvenile.
MR. DONNELLY:
This man had been in the Army for some time, and 00 G rl -rl mar ad *WHPIrn k out; C 0 GG -A 3 l a-rl.4 0 . cn . a, fj,% +, c,,c4Ja,-rl a, U 0 -4.r-rl bEGa,W Urd m-n c,a-rl c, $20 5 mrlw td %O+)
a,= kQ)k=I rdma~cn 2E..alrnG a, 5hUOOk mk D a -; a, *oGa = 3a,,G+,OF rlalV~c,a, kVQ)+, k -U.ds kWa E cnu+).,o .am -d 0 U a, -rl 4Jrl a,W rn-rl ro,G fdnm a, 4J S=t=~hmac, +,PI= Ofd7- m ~ASQIGm tP a, 5 a, r ..Sm -4acr kJZ 9 C 5Lmgda,U07 3N-rlUW ' U h *kOOV+1d dal 4J -4 rl G,cC a,c 4 OUHfOkO-rl rd -4 a,-7 C4 @a, g rnrn a, C" g $='4J 0s Ua,a,Ufflc, Ukk -G 0'4-4log25 rd Ct3 a, 0 .rl
a,&33ka,U 0 0s x $9- $UWc,a, fd -rla 3 o* fd Ohk "2 a, !-: 5 Opening Remarks
HIS LORDSHIP:
I would like to spare him a lot of things. We are here under the Criminal Code. That is the difficulty. Is that satisfactory to you, Mr. Crown Attorney?
MR. HAYS:
I cannot raise any argument that I feel would be effective against the proposed ruling, My Lord. I feel it is regretful but I can't find anything to oppose it.
HIS LORDSHIP:
On my interpretation of 427 of the Criminal Code, there will be no publicity in the newspapers or in the radio or in the television. That is, no broadcasting to the public of what is taking place before this Trial, but I am. not going to exclude the public from the Courtroom except, of course, there may be certain phases of the case which will require the public to be excluded.
I hope the newspaper reporters will take note of what I have said, that order as regards publicity of the trial, and it will be obeyed. When it comes to the end of the trial, that might be a different proposition, but at the 30 present the trial is to take place without publicity.
MR. DONNELLY:
Thank you, My Lord.
HIS LORDSHIP:
Now, Mr. Hays, will you open this case to the Jury, please. 40 . . MR. HAYS:
May it please Your Lordship and Ladies and Gentle- men -- pardon me, Gentlemen of the Jury. It is my privilege and duty as Counsel for the Crown at this time to outline the nature of the Crown's case that will be presented to you. The indictment reads that Steven Murray Truscott on or about 24
Opening Remarks
the 9th day of June, 1959, at the Township of Tuckersmith, in the County of Huron, did unlawfully murder Lynne Harper, contrary to the Criminal Code of Canada. The entitlement is the Queen versus Steven Murray Truscott.
Mr. Donnelly is Counsel for the Accused, Steven 10 Murray Truscott, seated in the box, and I am Counsel for the Crown or Queen. NOW, that may not require amplifica- tion, but obviously the Queen is not represented in a personal way, but rather, by our system of justice. The expression means of all the people. I believe in many of the States in the United States, the indictments are en- titled: "The people versus so-and-so". It might be com- pared, possibly, with a family trying one of its members and somebody being spokesman for the family. I don't know whether the parallel is apt to suit my role, but in any 20 event, that may be of some assistance to you.
You 'have been chosen from and on behalf of all our people to hear the evidence and decide on the guilt or innocence of the accused. You will be directed in the law by His Lordship, the Judge, and after all the evidence has been heard, you will be addressed by both learned Counsel for the accused, myself, and finally by His Lordship, the Judge. In the event of your finding the accused guilty, the matter of sentence then rests entirely with the Judge. 30 I will seek to present the evidence to you as His Lordship mentioned, in the sequence or order in point of time in which the events occurred, but, Gentlemen, that is not entirely possible. On the back of the indictment, there are sixty-one names representing citizens who may be called on behalf of the Crown. There may be more on behalf of the defence. I am only presenting you witnesses in support of the Crown's case, but there may be more or conceivably fewer than sixty-one, but it is such a number that to fit them all into sequence of events, in order of time, Gentle- 40 men, I regret to say, is well nigh impossible. I caution you on that for this reason, that you could, realizing that a witness may be in the box and, of necessity, he is probably only going to be in there once, he may be testify- ing on events that happened on Monday, Tuesday; Wednesday, Thursday, and he will be in a group with others testifying conceivably, only as to events on Monday. Now, you will have to tuck away in your minds, as best you can and carry 25
Opening Remarks
forward what he said of the events on Thursday and fit them into their allotted slot when the witnesses, giving evidence pertaining to that day, are heard later.
I will outline to you what evidence I reasonably expect the witnesses to give under oath. If I say something in this outline that is not testified to under oath, you will act upon not what I say, but be guided entirely on what you will hear by way of sworn testimony from the witnesses.
NOW, the times of the happenings. You should possibly bear in mind, in getting an over-all view of this matter, there was Tuesday, June 9th, of this year, the date set forth in the indictment, and the following days, Wednes- day, June the loth, Thursday, June the llth, Friday, June the 12th, and to a certain extent, Saturday, June 13th. The place 20 was a section of the Township of Tuckersmith. It may be familiar to many of you, but not to all of you, possibly. It centres around a road that is really a Tuckersmith Township road, but you may expect to hear the witnesses refer to it as the County Road. It is a local expression. It is a paved road, that leads northerly from the Married Quarters of the R.C,A,F,, lying to the east of the Station on Number Four Highway, to Number Eight Provincial Highway leading from Clinton to Seaforth. In other words, it is, let us say, a mile and a quarter -- is a mile and a quarter immediately 30 east of the Town of Clinton, or Number Four Highway. As it proceeds from the south, from a point near the public school, it serves many homes of the Air Force personnel in there. It passes, first, on the left, a set of farm buildings, and then on the right or east, Lawson's bush, of which you will hear a great deal, which has a laneway going in on its north side, some of which is downgrade, and proceeds on over some rail- way tracks and then over a bridge, over a railway, and then on to Number Eight Provincial Highway.
Lynne Harper was the twelve-year old daughter of a Flying Officer Leslie Harper and his wife, and had lived with her parents in the home on the Married Quarters. The father, obviously his title suggests, being a member of the Air Force stationed at Clinton for some two years. She was in grade seven, better known to some of us, as Junior Fourth, the year before entrance in the public school, near this road in question, near the Quarters, and active in Girl Opening Remarks
Guides, etc.
On this day, Tuesday, June 9th, you will hear witnesses tell of Lynne's movements after she left school, playing softball as some member of the school team. Some playing field on or near the locale of this, being driven home by her teacher, having her supper with her mother and father, and being seen walking away from her home after the completion of supper. I am avoiding, quite deliberately, giving you times in there of when she arrived home. When she had her supper. When she finished her last meal. When she left the house. I will simply say it was about the supper hour. These times are important, Gentlemen, and I want you to note them as you hear from from her parents. They won't follow one another, probably. The mother first and perhaps a little later the father, but I would ask you to note, when they are in the box, what she had to eat. Also when she finished her meal, and I will tell you w%y. You will later hear from a Provincial Pathologist who did a post-mortem on her body, and he will give you an opinion of the time of her death, based on his observation of her stomach and its contents. His opinion will be based, probably the time of death, to the time of finishing the last meal, so I will prefer you to hear that, because it is of such importance, from the lips of the witnesses, them- se:.J-Ves ,
Other times are also of importance. When she walked out of the house after the supper hour. That was the last her parents ever saw her alive. But you will hear of her being seen some place in the seven o'clock area up at the school, on the grounds, and there seems to be a bush area there, where there is a collection of trees, where a Brownie Pack -- they are little girls commencing to be Girl Guides. She joined two ladies up there who were conducting the activities for the Brownies, You will hear from the 40 two ladies.
I might have said, Gentlemen, in connection with the area in question that I tried to outline briefly, for the purpose of my remarks, that you will have tendered to you maps made by a surveyor, and of the road in question, and of those areas extending roughly a mile and a quarter along this road, that I trust will be of help to you, and Opening Remarks
the school and its immediate grounds, including this road, so to speak, will be shown on those plans.
Following on with Lynne' s movements. You will then hear of her being seen leaving with Steven Truscott, the accused, from this same place near the school. Naturally, 10 that time is important. I have tried to bring the movements, to outline the evidence by which I seek to show you the sequence of the events and I have rather gone over Lynne's movements from school on,
I should deal with the accused, who is in the same grade, although older than the deceased girl, and at the same school. He was, at the time, and still is, the son of a Warrant Officer who also lives in the Married Quarters on the Station. NOW, in considering the movements of this 20 accused relative to the crime, you will hear from one, who may be a very important witness in your estimation, Jocelyn Godette. She is a girl from the same grade, and she will tell you of arrangements she made with Steven Truscott at school on the Monday and the Tuesday before, in or near this same bush where this body was found, to look for a certain purpose she will outline. You will hear that better from her lips as to their arrangement together to go to this bush, and that was at, let us say in the area of six o' clock, roughly. You will hear better the times from her 30 and certain things said by way of caution of bringing any- one or telling anyone.
NOW, you will be told by her of the boy going to her home about the time of the appointed hour and her being engaged at supper and not able to go. There was a delayed meeting, possibly, to be taken from the conversa- tion. Then he leaves and he is seen at times by some of the witnesses, after he left the Godette home, until he joins Lynne up at the school roughly at seven, but I feel 40 -Ihave to outline that to you so when you hear of his movements of six or six-thirty, the times before he has joined Lynne, that you will interpolate them in the evidence of this JocelynlGodette. Otherwise, it may be very confusing why witnesses are telling of his movements prior to his being with the deceased girl. NOW, they did meet, Jocelyn Godette will tell you how she was late. She went down to the area in question looking for him and Opening Remarks
didn't find him. You will hear from these same ladies, who were conducting the Brownies, of how Steven Truscott came up on his bicycle, came up to Lynne Harper and they walked away towards the vicinity of the County Road. They were seen by one or two or more boys, that you will hear from, going up to the County Road at its south end, for your pur- 10 pose, near the school, and then the bicycle going north in the direction of these woods with the girl on the cross- bar, That, Gentlemen, is somewhat after seven and is the lasttime any Crown witness will testify seeing this girl alive.
Now, you will hear from the same Godette girl of her coming along and going up, down to the bridge and looking for him and not seeing him. You will hear from a George, Arnold George, who is a close chum of Steven, and he was out 20 looking for him and, he will relate, without success.
Now, you will hear from a boy that met them, Richard Gellately, as they went down between the farm on the left and the bush on the right. You will hear from no Crown witness who ever saw them -- I have no Crown witness who ever saw them at the place north of the bush. You will hear from witnesses who saw Steven Truscott return alone to the school at about eight o'clock. These times are important, Gentlemen. I referred you -- I had to give some 30 rough estimate of them, to outline them to you, but I want you to get the times from the witnesses.
Early the next morning -- Lynne never came home, and the next morning her father, whom you will hear, went to the Truscott home early, and saw Steven Truscott and had some talk with him. That is, of course, Wednesday, the day after, quite early in the morning.
The police were alerted by that time, they were in motion, investigating her disappearance. You will hear from the Police officers. He was the last one seen with her and talked to them and what he said at that time, and also the following day, Thursday, there was conversation. There were talks between the Police and Truscott, talking to a great many people. Arising out of these things, that you will be told that Steven said, during these days of investigation, you will not hear of any concessions at all Opening Remarks
or anything like that, but the reason they will be put be- fore you is that I will also call witnesses to show, or try to show falsehoods told by him during that period. There will be talk of the grey 1959 Chevrolet car with yellow licence plates that was supposed to be seen taking her away, picking her up down at the highway and proceeding east. 10 You will be shown pictures taken from the bridge he was supposed to have seen this from. You will be judges of what can.or cannot be seen.
NOW, the first witness you are going to hear from will be Corporal Erskine, Identification Officer for the District Provincial Police. He will bring before you certain pictures. You also have, as I said earlier, surveys of the area, I should possibly fit in there, to try to be of more assistance to you, to refer to activities by the Police 20 search parties going on and so on.
Tuesday, Wednesday, Thursday, fruitless searches that came to an end when, on Thursday afternoon, Lynne's body was found in Lawson's woods by a search party. Then Corporal Erskine arrives soon after the body was found and he took many pictures of the surroundings and some of the body. The body was later removed -- when I say later, that same afternoon, that late afternoon, to Clinton, where Doctor Penistan, who arrived on the scene at the bush did a 30 post-mortem. He will testify as to the cause of death and also to the probable time of death. The pictures are presented to you, may be presented to you for your better understanding of the certain marks that you may feel, when you have heard all the evidence, very significant, marks found near her body, garments strewn about. It may be of assistance -- the pictures are put forward in the belief they will be of assistance to you to figure out what probably happened and to see these marks, to see the nature of the ground, the bush area, generally. 40 In the belief that pictures are of much more assistance to you possibly than any number of eye-witness accounts of the same thing.
You will hear from a number of witnesses, young school friends, boys in the same age group as Steven, of things he said to them concerning her disappearance, on the Opening Remarks
Wednesday and the Thursday. Yes, commencing Tuesday night, Wednesday, Thursday and possibly Friday.
I won't attempt to relate to you what these con- versations will be, other than saying they are relevant to Lynne's disappearance, but you will hear from their lips what he had to say.
The next day, Friday, you will hear of a search warrant being executed on the Truscott home later, late in the day, early evening, and certain items taken from the Truscott home. I might have mentioned there will be a great many exhibits presented to you. Things taken from the bush area, from the body after it reached the Funeral Home, taken from quite a number of sources, those Exhibits.
You will hear how one officer will pick a thing up and give it to another officer and then that labelled some place in the presence of another officer and then taken by Corporal Sayeau, who will come near the last, down to Toronto, where they were subjected to analysis by officials of the Laboratory of the Attorney-General ' s Department, particularly a Mr. Brown, a Biologist, who conducted tests on different things. One of the things you may find Mr. Brown's evidence on, to be of very considerable significance, were some -- an item of the clothing of the accused, taken from him some time after his arrest. I might say then that in sequence that on the Friday night -- I should say the Friday a statement was taken from the accused by Inspector Graham and the other Police, one of the other Policemen, signed that night by him ., ,
HIS LORDSHIP:
Mr., Hays.
MR. HAY$:' ..
I don't intend to say anything about it.
HIS LORDSHIP:
You shouldn't have said anything about it at all. 31
Opening Remarks
MR. HAYS:
Event the fact that it was taken at all?
HIS LORDSHIP:
10 I may have to discharge this Jury and start over again. You shouldn' t do that, you know. I will have to con- sider that,
MR. HAYS:
I felt, My Lord, that the reference .. .
HIS LORDSHIP:
Never mind what you felt. Nothing about it.
MR. HAYS:
You will hear of a physical examination made by two doctors of the accused, that on the Friday night at Clinton and their findings. I will leave it entirely for the doctors. Doctor Addison of Clinton and Doctor Bro'oks who, at that time, was principal Medical Officer of the Station, to tell you of what they found. 30 Now, I haven't attempted to list the particular witnesses with particularity. There are Police witnesses and what they found, and their parts in this matter. And in presenting the charge of murder, the Crown does not of necessity seek to prove that Truscott meant to cause her death. It may be attempted to be shown that he meant to cause her bodily harm that he knew likely would cause her death and was reckless whether death ensued or not. That he meant to commit some offence. Indecent assault, some- 40 thing of that nature. There are many ways and maybe His Lordship will see fit now or at a later time to direct you on this matter of what comprises murder. His Lordship is the sole Judge, as I outlined at the first, of what the law is, and anything more on that you take from His ~ordship. 32
Opening Remarks
HIS LORDSHIP:
Call the first witness.
MR. HAYS:
The first witness, Corporal John Erskine.
MR. DONNELLY:
Is Your Lordship going to consider the remark made by my friend? I submit it was a most serious statement.
HIS LORDSHIP:
Just a minute. Will you Gentlemen retire to your 20 room for a minute, please?
--- Jury retired.
(In the absence of the Jury):
HIS LORDSHIP:
Mr. Donnelly?
MR. DONNELLY:
My friend has certain rights in opening. He has a right to review the evidence, but I submit that, generally, he went much further than that, but I do submit the most serious objection I can make to his opening remarks is the reference in regard to a statement which was given.
HIS. LORDSHIP:
40 You see, if the statement goes in, no harm is done, but if the statement goes out, you have made a mis- trial right now. If it isn't admitted, you have made a mistrial.
MR. DONNELLY:
We might have six or seven days before that. 33
Opening Remarks
HIS LORDSHIP:
Yes. You have a right to review the evidence, but as I told the Jury, what you say the evidence is, that is what it has, got to be or else you make a mistrial. You take the responsibility for what you say.
MR. HAYS:
The statement was taken but it is one they may never hear anything of.
HIS LORDSHIP:
If the statement is not admitted you have made a mistrial, Mr. Hays. If it is admitted, there is no harm done, of course. That is the position. So when the time comes you will have to keep that in mind. I can't do any- thing about it now, Mr. Donnelly, if Mr. Hays insists on going on. It shouldn't have been said because there is always a chance those things may be ruled out.
MR. DONNELLY:
Before the Jury comes back. I don't think the sheriff's officer should go in with the Jury and talk to them.
HIS LORDSHIP:
Officer, you are not to go into that room with the Jury and talk to them. You let them in and close the door and stay outside.
MR.. DONNELLY:
My friend -- possibly I am premature. My friend indicated that Corporal Erskine was going to give evidence in regard to pictures which he took. NOW, there are some of them to which I have no objection, but there are some of them to which we have most serious objection and we feel that they might very well inflame the Jury or be very pre- judicial to the Jury. Now, the pictures do not, the ones to which we object, do not show anything that cannot be 34
Opening Remarks
described, Your ~ordship.
HIS LORDSHIP:
Mr. Donnelly, we will have to look at them one by one and you will see them before the Jury sees them.
MR. DONNELLY:
Yes. I was wondering if we could arrange to see them before we start on them to see which ones are objection- able and which ones are not,
HIS LORDSHIP:
You will have the privilege of seeing them as soon as Corporal Erskine identifies the pictures. I suppose we can adjourn now and you can go over them with Mr. Hays..
MR. HAYS:
. My friend has seen the pictures, or most of them.
- MR. DONNELLY:
I have seen most of them.
HIS LORDSHIP:
You raise your objections before the Jury see them.
MR. DONNELLY:
Would it not be possible to see them?
40 HIS LORDSHIP:
Not until they are identified. If your objection is well taken I will exclude them,
MR. DONNELLY:
That is, before they are marked as Exhibits? Opening Remarks
HIS LORDSHIP:
Yes.
MR. DONNELLY:
Would you like my argument now as to why they should be excluded or would you like the Jury to return and do it then?
HIS LORDSHIP:
I think we will have to do it then, Mr. Donnelly.
MR. DONNELLY:
Thank you. --- 'Jury returned,
MR. HAYS:
Corporal Erskine. CPL. .. J. W. ERSKINE (For Complainant at trial) In chief
COMPLAINANT ' S EVIDENCE AT TRIAL
APPEARANCES:
10 MR. GLENN HAYS, Q.C., COUNSEL FOR THE CROWN;
MR. FRANK DONNELLY, Q.C. 1 COUNSEL FOR THE ACCUSED.
DEPOSITION OF CORPORAL JOHN WATSON ERSKINE
CORPORAL JOHN WATSON ERSKINE
sworn.
EXAMINATION-IN-CHIEF BY MR. HAYS:
30 Q, Corporal Erskine, you are a member of the Ontario Provincial Police? A, I am, sir. Q. And you are -- you hold the appointment of Identification Officer for this District? A. I do, sir. Q. And did you, in that capacity, attend at the scene in Tuckersmith Township, where a body was found on Thursday, June llth, last? A. I did, sir. Q. At what hour did you arrive? A. I arrived at four p.m. in the afternoon of June the 11th. I Q. And on arrival, what did you find? 40 HIS LORDSHIP: I Let where went us find out he first, please. I I MR. HAYS: Q. Where did you go? What locality? A. I I
i i CPL. J. W. ERSKINE (For Complainant at trial) In chief
went to a bush lot in Tuckersmith owns ship, lot number 35, Concession 2, Tuckersmith Township, to a bush lot of Robert S. Lawson, R.R. No. 5, Clinton.
HIS LORDSHIP:
Q. What Lawson? A. Robert S. Lawson,
MR. HAYS:
Q. And what did you find there? A, I found the body of a female child. The body was laying on its back, face upwards with the head towards the east and the feet to- wards the west. Q. Yes. Any other description of the scene? A. Alongside of the body, to the north, were a pair of blue- 20 coloured cloth shorts. A pair of brown scamper-type shoes. A pair of white sockettes. Q. Yes. I show you, Corporal Erskine, a small red button (produced). Did you see that at the scene? A. Yes. Q. Where was it when you first saw it? A. It was on the ground in what resembled blood, under the Left shoulder of the deceased, Lynne Harper. Q. And did you remove it from that position? A. I did, sir, Q. When was that? A. At 11: 15 a.m. in the morning of Friday, June the 12th. Q. That is the day after you arrived? A. Yes, sir. Q. What did you do with it? A. I turned it over to Corporal Elmer Snell of our Goderich Detachment, Q. I tender the button which is enclosed in an envelope showing it was marked on the preliminary as Exhibit one, My Lord.
40 HIS LORDSHIP : I I I suppose there is no objection to it being marked now, Mr. Donnelly. It is not strictly admissible yet. Do you object to it being marked? I MR. DONNELLY: CPL. J. W, ERSKINE (For Complainant at trial) In chief
I suppose my friend will prove the significance in the usual way.
MR. HAYS:
Yes, I will.
HIS LORDSHIP:
You will have to prove it has something to do with the case. On that undertaking, it will be marked Exhibit one,
--- EXHIBIT "1": Red button in envelope referred to.
HIS LORDSHIP:
There is a limit to which you can put a case in backwards. You have all the time in the world to put the case in chronological and proper order.
MR. HAYS :
Q. By the way, did you take certain pictures of the scene around the locale? A, I did, sir. Q. What day did you take them? A. I took some on the afternoon of June the 11th. I took others at a later date, sir, Q. I show you a negative, Corporal Erskine, bearing some marks at the bottom. Can you identify that negative? A, Yes, sir, I took this, sir, Q. What is it a picture of? A negative of? A, That was taken on the afternoon of Thursday, June the llth, at the hour of 4:48 p.m., showing scuff marks in the ground adjacent and to the west of the deceased's feet.
MR. HAYS: .
Would the Court care to see this before it is entered?
HIS LORDSHIP: 39
CPL. J. W. ERSKINE (For Complainant at trial) In chief
No.
MR, HAYS :
I tender this as Exhibit number two.
MR, DONNELLY:
I don' t know what this is. ~ouldn'it be better to put the picture of the negative and the negative in to- gether? It is difficult to see what it is.
MR. HAYS :
If the witness can give you the number of the picture which was produced from this negative.
THE WITNESS:
The photograph number, My Lord, is number seven. It appears on the back.
HIS LORDSHIP:
Are you going to put the negative in with the photograph? 30 MR, HAYS:
It will be the next Exhibit I propo'se, Your Lordship.
MR. DONNELLY:
If my friend puts in the negative, I suggest he must put in the picture first. 40 HIS LORDSHIP:
I think you should do it that way,
MR. HAYS: CPL. J. W. ERSKINE (For Complainant at trial) In chief
That will be the only one.
HIS LORDSHIP:
Let Mr. Donnelly see the picture.
MR. HAYS:
Yes (produced).
Q. What is the picture that I show you? A. This is a picture that was made from the negative and shows scuff marks adjacent to and west of the feet of the deceased.
MR. HAYS:
I tender the picture, My Lord, as number two.
MR. DONNELLY:
I submit that the pictures can be -- possibly I should not argue in front of the Jury, My Lord.
HIS LORDSHIP:
The picture will have to go in, I am afraid, on 30 the same basis as the first Exhibit, and all of these Exhibits until you start at the right point, on the ~ndertakingyou are going to connect it properly with the case. The picture will be exhibit two and the negative number three.
MR. HAYS:
Q. Does the picture that has gone in as Exhibit two, truly represent the marks that you saw on arrival there? A. That is correct, sir. 40 --- EXHIBIT "2": Photograph of scuff marks.
--- EXHIBIT "3": Negative of scuff marks.
Q. And is Exhibit three the negative you previously identified? A. Yes, sir. CPL. J. W. ERSKINE (For Complainant at trial) In chief
Q. And it is the negative from which Exhibit two was made? A. That is correct, sir.
HIS LORDSHIP:
I think that is all just now until after lunch. You may step down.
THE WITNESS:
Yes, thank you, My Lord.
--- Witness retired.
HIS LORDSHIP:
Now, Gentlemen of the Jury, we are going to adjourn until two-thirty this afternoon. NOW, it is extremely important during the adjournments that you do not talk to anybody outside of your own group about this case, and that you do not permit anyone to speak to you about it at any time. I cannot stop you from talking about it among your- selves as much as you wish, but you will find and I have found, over many years of experience, that it is a foolish thing to talk about a case until you hear the evidence, be- 30 cause if you start talking about it now, among yourselves, you will be advancing theories of your own, and you will be making up your minds about points that you should not make up your minds about at all, until you have heard everything, so I would advise you not to discuss the case among your- selves, even, but certainly, don't permit anyone to speak to you about it. If anyone attempts to speak to you about the case, report them to me. Now, will you swear the constables.
40 --- Two constables sworn to attend the Jury.
HIS LORDSHIP: !
I hope the Constables will realize and drink in .! the words of that oath. You are to remain with the Jury and
that means exactly what it says. You are to r main with them 1 and return them here at two-thirty. Let the Jury now retire. CPL, J. W, ERSKINE (For Complainant at trial) In chief
--- Jury retired.
--- Accused retired.
--- Whereupon the further proceedings were then adjourned until 2: 30 p.m.
--- Upon resuming at 2:30 p.m.
--- The accused present,
--- Jury returned,
HIS LORDSHIP:
Now, call the witness,
DEPOSITION OF CORPORAL JOHN WATSON ERSKINE (continued)
CORPORAL ERSKINE
resumed:
MR. HAYS: 40 Q, Corporal Erskine, with respect to the marks shown in Exhibit two, your number seven is on the back? A. Yes, sir, Q. Did you make certain measurements of those marks? A, Yes, sir, Q. And did you make -- when did you make those measurements? A, On the afternoon of Thursday, June the CPL. J, W. ERSKINE (For Complainant at trial) In chief
llth, sir, Q, I see, And was the body there at the time or otherwise? A, It was there at the time, sir. Q, When you made the measurements? A, When the measurements were made, Q. I see, Then, did you make certain observa- tions of the marks? A. I did, sir.
MR. HAYS:
My Lord, might I have the permission of the Court, in order that the Jury might better follow this evidence, to show them copies?
HIS LORDSHIP :
20 No, not yet, Not yet, You see, you are starting backwards. You haven ' t done any proper proof yet to shaw the Jury the pictures.
MR, HAYS:
Q. Were you taking these pictures under anyone else's direction or on your own, as Identification Officer? A, I was taking them on my own,
30 MR, HAYS:
This man was there and took these pictures himself,
HIS LORDSHIP:
I know. I understand that, but you have not ar- rived .at the point yet where you should show the Jury the pictures,
MR. HAYS:
I see.
Q, Do you identify the picture I now show you, Corporal Erskine?
MR. DONNELLY: CPL. J. W. ERSKINE (For Complainant at trial) In chief
What number?
THE WITNESS:
Yes, sir,
MR, HAYS:
Q. This is an enlargement -- I will let the witness answer. A. This is an enlargement, an enlarged view of the marks at the bottom of the left foot of the deceased, Q. I see, Did you make that enlargement? A, I did, sir,
MR, HAYS : 20 With Your Lordship's permission, may this be marked as Number four?
MR. DONNELLY:
My Lord, I would like to have my objection noted. The grounds may not be apparent yet. I would like my objec- tion to this noted. The grounds will appear later, My Lord.
HIS LORDSHIP:
All right, We will mark it Exhibit four, unless it is going to be marked merely for identification. Do you object to it being marked as an Exhibit?
MR, DONNELLY:
I object to it being marked as an Exhibit, I am quite prepared to explain my position to the Court. 40 HIS LORDSHIP: 1
I understand, It will have to be marked as Exhibit A for identification.
--.I) EXHIBIT "A" for Identif ication: Photograph enlargement of marks, CPL. J. W. ERSKINE (For Complainant at trial) In chief
MR. HAYS :
Q. What measurements, Corporal Erskine, did you make? A, I found that the scuff marks to the west of the right foot were six to seven inches. They were on a slight angle to a true "T", with the foot.
HIS LORDSHIP:
Q. Say that again, will you, officer. A, Yes, My Lord. The measurements, the scuff mark was six to seven inches, six inches angling to seven inches and measured eleven inches in length. Q. Six to seven inches from what? A, From the toes of the right foot of the deceased, My Lord.
MR. HAYS:
Q, Any other measurements of those marks? A, And from the left toes, running adjacent to same, there was scuff marks approximately ten inches in length. Q. Any other measurements of any marks shown in the Exhibit so far? A. The scuff marks were approxiinately one-eighth to one-quarter inches in depth, and the dirt had been pushed back to a depth of approximately one a~da half inches, 30 Q. Did you take the picture I now show you, Corporal Erskine (produced)? A, I did, sir.
MR. HAYS:
I will show this to Your Lordship before I make any reference to this subject matter.
HIS LORDSHIP:
Show it to Mr. Donnelly.
MR. HAYS:
This is number one, Mr. Donnelly.
MR, DONNELLY: 46
CPL. J. W, ERSKINE (For Complainant at trial) In chief
My Lord, I submit with respect that pictures of this type should not be put in as Exhibits.
HIS LORDSHIP:
Will you Gentlemen of the Jury retire for a minute, please.
--- Jury retired.
IN THE ABSENCE OF THE JURY
HIS LORDSHIP:
I will hear your objection.
MR. DONNELLY:
Pictures such as one introduced by my friend are very apt to inflame the Jury and prejudice them against the accused. They do not represent anything that cannot be orally described. Whatever this man found, he can orally describe it. It has been long held it is highly dangerous to present to a Jury any picture of which might tend to un- fairly influence them in their deliberations.
I have a fairly recent case in a Civil trial, the case of Yachuk versus Oliver Blais, with which I am sure Your Lordship is quite familiar, before Mr. Justice Urquhart in 1944. That is a case where a boy eight or nine years of age purchased some gasoline at a service station. He and another boy about the same age took the gasoline out and 40 attempted to light some : bulrushes or some rubbish, and the galosine spilled on the boy's pant leg and took fire, and he was oery .severely.A5urned. The matter came before Mr. Justice Urquhart and he found negligence on the part of the Defendant and also on the part of the infant Plaintiff. The matter went to the Court of Appeal and subsequently to the Supreme Court of Canada and eventually to the Privy Council. CPL. 3. W. ERSKINE (For Complainant at trial) Argument
In the later decisions the Supreme Court did not deal with the point which is raised here. They dealt with the apportionment of negligence. This young boy appeared in Court. He was fairly tall and wearing white short trousers or pants, so the Jury would have an excellent opportunity of seeing the injuries to his leg. He had been in the habit of wearing long trousers, but he gave the reason for appearing in the shorter trousers that there was a sore on his leg and that the longer trousers hurt. The Judge ordered him from'the box and eventually took the matter from the Jury. This case is reported in 1944, 3 D.L.R., page 616, He says:
" It was my opinion - although it may not be so - that he had so dressed deliberately to expose his legs to the Jury. I asked him if he was used to wearing long pants and he said, ' yes ' . I asked him why he appeared thus, and he said that his leg at the back of the knee had broken out with a sore and that he had not worn long trousers for the purpose of avoiding irritating his leg. I ordered him out of the witness box but in my opinion, the damage had al- ready been done, "
The trial was in Toronto and he brought a long pair of trousers with him in the event of the weather turning colder.
" The court pointed out that the Jury could not help seeing a scarred face, but that they should not be permitted to look at other parts of the body which were usually covered. "
40 " I read the passage from the above judg- ment to which I have referred to the Jury and explained to them they were not to take into consideration what they saw but I was still in great doubt as to the efficacy of my injunction in that regard, On the same principle I rejected the photographs of the legs 48
CPL. J. W. ERSKINE (For Complainant at trial) Argument
" taken at different stages in the boy's healing. These also exhibited the most horrible and revolting appearance, the boy having been burned in many places, right to the bones of his legs. "
He rejected the photographs and would not let the photographs be produced, That matter went to the Court of Appeal and the only reference there to that particular phase of the trial was in the judgment of Mr. Justice McRuer, and that decision is reported in 1945, Ontario Reports, page 18, and particularly at page 26. The Court of Appeal allowed the appeal and found that the negligence was on the part of the vendor of the gasoline rather than on the part of the boy, but the learned chief Justice had this to say:
'I The learned trial judge has set out his reasons for the exercise of the discretion which was vested in him, and in the result I agree, "
That was to take the matter from the Jury, He found that the matter was properly taken from the Jury. And then there is a very ... no Criminal Case I have been able to find reported in Canada, but I have Wigmore on Evidence, Volume Six, of the Third edition. If I may refer to article 1157, at pages 252, 253 and 254, and this was a case of Walsh versus People, tried in New York Court, Andrews, C. J. , quoted as follows. It appears to be a direct quote.
" The exhibition of the photograph of a young girl alleged to have been cruelly murdered was, as is claimed, calculated to excite the pity of the Jurors for the unfortunate victim of the homicide and, correspondingly, to excite their prejudice against the accused, "
I submit that is exactly what these pictures will do if they are admitted in. this trial. We find at page 253:
" Tho the evidence addressed to the senses, if judiciously employed, is CPL. J. W. ERSKINE (For Complainant at trial) Argument
" obviously entitled to the greatest weight, care must be taken not to push it beyond its legitimate extent. The minds of Jury men especially in the remote Provinces, are grievously open to prejudices, and the production of a bloody knife, a bludgeon or a burnt piece of rag may sometimes by exciting the passions or enlisting sympathies of the Jury, lead them to overlook the necessity of proving in what manner these articles are con- nected with the criminal or the crime,
And at page 254. This was with reference to the keeping of the pictures out.
" The objection thus indicated seems to be two-fold, First, there is a natural tendency to infer from the mere production of any material object, and without further evidence the truth of all that is predicated of it. Secondly, the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. "
I do submit that where what was found can be adequately described in words, then pictures such as these should not be received in evidence on a trial of this kind. They are bound to prejudice the Jury against the accused. I submit that we do not have to go so far that they are bound to. If there is a possibility -- possibility probably is not the right word. If they might tend to prejudice the 40 Jury against the accused, then they should not be admitted in evidence.
We had a somewhat similar case last week at Simcoe, a man by the name of Takacs was on trial for the murder of his eight-year old son. He had been tried earlier. He was convicted and the matter went to the Court of Appeal. The Court of Appeal directed a new trial and that new trial CPL, J. W. ERSKINE (For Complainant at trial) Argument
was held last week. I noticed an extract in the paper and I notice the Courts are not as a rule ,. ,
MR, HAYS:
I should think not. An extract from a newspaper.
MR, DONNELLY:
Let me put it this way, My Lord. There is an un- reported case, Regina and Takacs tried at Simcoe last week and I have talked with the Counsel who defended Takacs and he advised me that photographs of the body of the eight-year old victim and photographs of the wounds on the body and head of that victim were not permitted to be introduced as evidence. That is a judgment, a most recent judgment. It has not yet had time to be reported. Most similar to this. The body of the victim, the wounds of the victim and I do, with respect, My Lord, urge the Court that these pictures do show gruesome details which can readily be described. The position of the body can be described. The injuries to the body can be described. This body was seen by Doctor Penistan, evidence will show that. Doctor Penistan, my friend has indicated that he proposes to call him as a wit- ness because he asked he remain in Court, He will be about the sixth or seventh witness to be called. Doctor Penistan, the Provincial Pathologist, was at the bush at the time these pictures were taken. Some taken before and some -after he arrived. Surely he can, with his experience, can amply explain to the Jury what injuries were found on this body and I do suggest that the production of these pictures can have no possible effect in furthering the course of justice. If there was something that could not be explained, then my argument might fail, but here we are bound to find very material prejudice to this accused if pictures such as this picture are admitted in evidence. Thank you, My Lord.
HIS LORDSHIP :
Well, Mr. Hays, is there some reason you want this picture in?
MR. HAYS: 51
CPL. J, W. ERSKINE (For Complainant at trial) Argument
May I submit on the law a moment?
HIS LORDSHIP:
Answer my question first, please, Is there some reason, some peculiar reason you want the picture in, be- cause it certainly will tend to prejudice the minds of the Jury, unless there is some reason that you want it in, some peculiar reason you want it in, that it is necessary to put it in?
MR. HAYS:
May I reply on the law first, My Lord?
HIS LORDSHIP:
Just answer the question first,
MR. HAYS:
It shows the shoe and shows the body, its posi- tion, I feel, and the vegetation and all that better than the evidence. The absence of rocks might be significant. There might be more marks,
HIS LORDSHIP:
You will not put it in for the vegetation or for that shoe,
MR, HAYS:
It shows her position there, My Lord,
HIS LORDSHIP: 40 It can be described, What does it show that makes it necessary for you to put in that picture, because it is a picture which will certainly affect the minds of the Jury. Unless you can show me that, I am not going to allow it in. Is there some particular reason you have to have it in? CPL. J. W. ERSKINE (For complainant at trial) Argument
MR. HAYS:
It will be, My Lord, as a result of the evidence of Doctor Penistan, there will be evidence tendered to suggest an act of intercourse was had with this girl at or about the time of the death.
HIS LORDSHIP:
Haw do the pictures show that?
MR. HAYS:
It will show a position consistent with that. The way she would be laying.
20 HIS LORDSHIP:
But is that sufficient to put a picture of that sort in? That position is consistent with anything. Not necessarily consistent with that at all.
MR. HAYS:
It might tend to substantiate that.
HIS LORDSHIP:
It would tend to substantiate that, but it would tend to substantiate any other thing, too. It isn't con- sistent only with that. It is consistent with almost any- thing.
MR. HAYS:
Well, My Lord, I feel this ruling is contrary 40 to the law. I would like to quote the authority of the Court of Appeal of Ontario. Rex versus O'Donnell. The Court of Appeal of Ontario, a very well known case. The Ruth Taylor case in Toronto, found in 1936, D.L. R., volume two. A Court comprising of Sir William Muloch, Latchford, Riddell, Middleton, and Masten. The headnote: CPL. J. W. ERSKINE (For Complainant at trial) Argument
" Photographs of the body of a woman found murdered, as it appeared on the scene of the murder, are admis- sible in evidence against the accused charged with the crime, "
Now, at page 528, Sir William Muloch gave Judg- ment:
" Another ground of appeal is that the learned trial judge erred in permit- ting the Crown to file certain photo- graphs of the body of the deceased girl and used them as exhibits when such could serve no useful purpose in determining the issue involved, while on the contrary they prejudiced the Jury against the accused. The photo- graphs in question serve the useful purpose of corroborating evidence as to the treatment to which Ruth Taylor was subjected by her assailailt. "It is not believable that the sight of these photographs prejudiced the Jury against the accused, This ground of appeal should be dismissed. "
Now, it so happens I saw those photographs, associated as a student in that case, You will probably remember the case. She was found in a ravine off Gains- borough Road. There wasn't a thing to associate O'Donnell with the scene.
HIS LORDSHIP:
That is not so. You must have forgotten the case if you think that is so. There was a wrench found alongside with his initials on it. That is how close it was.
MR. HAYS:
I don't know, with the photographs in question, they were photographs of the body. In any event, they 54
CPL. J. W. ERSKINE (For Complainant at trial) Argument
admitted them then. There must have been something, if that is so, to connect the accused. Whereas, here in these photo- graphs there is nothing to connect this accused with that photograph .
HIS LORDSHIP:
That is one reason for excluding it at the minute, Mr. Hays.
MR. HAYS:
I thought the argument was it would prejudice the Jury against the accused.
HIS LORDSHIP:
That is the reason for excluding it at the minute.
MR. HAYS:
The photograph, itself, shows no property of his or anything of that nature. That is the extent I wish to cover in that. So here is the case, Your Lordship, the O'Donnell case, where it is superior to the decision which my friend reports from Simcoe.
HIS LORDSHIP:
These cases all turn on the circumstances in- volved in each individual case and even on the photograph itself. I am not going to admit that photograph at this stage of the case. I will leave it open to you. If, later on, it appears necessary for you to put it in, I will con- sider it again, but I am not going to put it in yet. I am not going to put it in at this point of the case. 40 MR. HAYS:
May I have an opportunity of recalling the wit- ness at a later stage?
HIS LORDSHIP: CPL. J. W. ERSKINE o or Complainant at trial) Argument
If it becomes necessary or you think it is necessary, I will give you leave to recall.
MR. HAYS:
I might say I don't know whether this is germane to the problem in Your Lordship's mind, that I will have evidence that will tend to show that the accused had engaged in some sexual act,
HIS LORDSHIP:
I don't know how that picture proves it.
MR, HAYS:
This shows her assailant ,, ,
HIS LORDSHIP:
I am not going to admit it at this stage of the case, so we better get on with the evidence.
MR. DONNELLY:
There are a number of other pictures in exactly the same situation, Would this be a time ,,,
HIS LORDSHIP:
I 'have not seen them,
MR, DONNELLY:
Unfortunately we have to have the Jury in and out.
HIS LORDSHIP:
I can't help that,
MR. DONNELLY:
Thank you, My Lord. CPL. J. W. ERSKINE (For Complainant at trial) Argument
-- -
HIS LORDSHIP:
Are you ready to proceed now? Call the Jury back.
--- Jury return.
IN THE PRESENCE OF THE JURY
MR. HAYS:
My Lord, you had ruled the last exhibit tendered as Exhibit A?
HIS LORDSHIP:
The one you are tendering as Exhibit four has been marked Exhibit A for identification.
MR. HAYS:
I didn't really follow the ruling.
Q. Then, officer, who blew it up? You developed the last Exhibit, did you, Corporal Erskine? A. I did. Q. ,What is it, with relation to Exhibit two that has already gone in? A. It is an extreme enlargement of the area adjacent to the left foot of the deceased. Q. And was it made from what negative? A. From the negative number seven, sir. Q. That is the negative that has gone in as Number three? A. Yes, sir.
HIS LORDSHIP:
Mr. Donnelly raised some objection and it is marked as Exhibit A for identification.
MR, HAYS:
Did Mr. Donnelly state his objection, My Lord? CPL. J. W. ERSKINE (For Complainant at trial) In chief
HIS LORDSHIP:
He didn't state it fully, but there were two or three obvious objections to it.
MR. HAYS:
Q. When did you make the enlargement that has gone in as Four A? A, I believe around June the 15th. I haven ' t got the exact date. Q. I see. Will you identify -- did you take the next picture at the scene? A, I did, sir.
MR. HAYS:
This is number eleven, Mr. Donnelly.
HIS LORDSHIP:
He will only confuse the record if you keep referring to the witness ' numbers.
MR. HAYS:
All right.
Q. Did you take the picture that I have now handed you? A. Idid, sir. Q. And what day did you take that? A. Thursday, June llth, at 5:28 p.m. Q. And where did you take that? A. This was taken from where the feet of the deceased had been looking north-east, showing Corporal Sayeau at a position where panties were found.
HIS LORDSHIP: 40 Q. Just say that over again. A. This photo- graph was taken from where the feet of the deceased had been, looking north-east, showing Corporal H, M. Sayeau, at a position where panties were found. Q. Yes, all right. When you say panties, I don't know whether you are referring to man's pants or women ' s pants or what you mean by that? A, These were a -0 o 0 hrn a, k fd-I4 k a awv a, 7 -a s I ka3 Q) rd'rrj 0s d 5 G rn 524aL: ma, a, d5rd .w 0 3s C.AS E m o rl wom -4S44J 8 a, U m a, -rlw 3 PIC-AJ-, -A ,e fie a $5- kO4Jrn c,+,a,m 0 Crd .. h owwa, 2v UOrdQ) - fd 01-4-rl ED41 rn a, E-1 ,- a s - ZU$ d GhOc, F:~J-I,G 68" rdcguc, l v52 t3H rt .'-I 4 -rl H 4J E z' c c m sovl -,-I a ow 4Jidrdc A 3. $4 -4XOW l m l WkO iw a, -d 0 ?s NGG *fXd k 9ua, h -4 2 P* a, UII ca I fd m r4 C *wc, rfd 0-rl I OEasEe o;~o;o;sa, d$Oi c,"$6 "3:+J7 I F1 G c m9 04SS 7 Ord rd 5 5 - rl kfd 5 4J rl Odd a 35 g .%a 0 0 WWC U k 0 ~fdala, PI m a,da,rn0 fd -rl m -a $; r "S a, s s I-r 30 m-rl -I 8 4J 0 -1.. 5 - k 0 -4 a, u C k Q) CO l c h ,Gc,a,a, fd 00s 0 a, tF xE 4J-rlwv B E-lG0 c, 31 CPL. J. W, ERSKINE (For Complainant at trial) In chief
Q. Did you take this picture (produced) ? A. I did, sir. Q. On the same day as Six? A. On the same day, at 10:45 a.m. Q. What does it show? A. It is from ap- proximately fifty feet north of the laneway looking in a 10 south-easterly direction towards the bush. Q. Does it show the laneway that you referred to? A. Yes, sir, the laneway is in the centre foreground.
HIS LORDSHIP:
You better show Exhibit six to the Jury. This will be Exhibit seven.
--- EXHIBIT "7": Photograph from fifty feet north of laneway, looking in south-easterly direction. \ HIS LORDSHIP:
I thought you said you were going to call a sur- veyor with a plan.
MR. HAYS:
But he isn't in sequence. He follows this wit- ness, My Lord,
HIS LORDSHIP:
You may think he does, but he doesn't in my mind.
MR. HAYS:
This is the following picture (produced to ~ury). 40 Q. This picture, Inspector, did you take it? A. I did, sir. I took that photograph also on Friday, June the 12th, at the hour of 10~47a.m.
HIS LORDSHIP:
Q. Ten? A. 10: 47 a.m., My Lord, taken from CPL. J. W. ERSKINE (For Complainant at trial) In chief
opposite the laneway, looking east.
MR, HAYS:
Is that the laneway along the north side of the bush that has been shown in the last two Exhibits? A. That is correct, sir.
HIS LORDSHIP:
Q. What does it show? Tell us, Officer, each time what it is a picture of, as well as the direction you are looking? A. I am sorry, My Lord, It is looking down the laneway, with the bush in the right foreground and beyond the lane.
HIS LORDSHIP:
That is Exhibit eight,
--- EXHIBIT "8": Photograph looking down laneway.
MR. HAYS:
Exhibit ,eight, Gentlemen (produced) . 30 Q. This picture, Corporal, did you take it? A. I did, sir. This was taken on Friday, June the 12th, at 2: 00 p.m, It was taken from an aircraft, the aircraft flying at four hundred feet. It is an aerial view looking south from the C.N,R, railroad bridge, which is to the north of the bush in question.
HIS LORDSHIP:
Q, What is it a picture of? A, It looks south, showing the area from the air, My Lord.
MR. HAYS:
What area? A, The area showing the bush with the railroad trestle in the foreground, the side road and the R. C,A. F. Station in the background. CPL. J. W. ERSKINE (For Complainant at trial) In chief
Q. When you refer to bush, is that the bush in which the body was found? A. The bush in which the body was found, sir,
--- EXHIBIT "9": Aerial view of area looking south from CON,R. Railroad Bridge.
MR. HAYS :
(Produced to ~ury).
Q. And this picture, Corporal? A. This was taken the same day.
HI S LORDSHI P : 20 That is Friday the 12th, is it? A. The Friday, the 12th of June, the aircraft was flying at four hundred feet and it is looking in a north-westerly direction showing the C. N. R. Railroad trestle and surrounding country. It shows number Eight Highway in the extreme right and the Town- ship Road in the centre. Q. Does it show the bush? A, No, sir,
HIS LORDSHIP:
No bush, Exhibit ten.
--- EXHIBIT "10": Photograph looking in north- westerly direction from air- craft.
MR. HAYS:
Next, Corporal (produced).
HIS LORDSHIP:
Show that one to the Jury,
MR. HAYS:
(Produces Exhibit ten to Jury). CPL. J. W. ERSKINE (For Complainant at trial) In chief
Q. If you will just wait a moment, Corporal. Yes. Did you take the photograph you now hold in your hand? A. I did, sir. I took this on the same afternoon. The air- craft in this particular instance was at one thousand feet from the ground and it is looking north over the R.C.A.F. Station, showing P.M.Q.'s Permanent Married Quarters. The Township Road, the bush, the CON.R, Railroad trestle and Number Eight Highway in the background. Q. Does it show the school on the P.M.Q.'s and surrounding grounds? A, Yes, sir.
HIS LORDSHIP:
School on what?
MR, HAYS:
P.M. Q, Permanent Married Quarters.
Q, And surrounding grounds? A, Yes, sir, in the left foreground, sir.
--_ EXHIBIT "11": Aerial photograph looking north over the R.C.A,F. Station,
MR. HAYS:
(Produces photograph to Jury).
HIS LORDSHIP:
You need not stop to study them too long, Gentle- men. You will have them later on, and you can look at them as long as you like.
40 MR. HAYS: ,
Q. Did you, on Saturday, June 13th, make an examination of the laneway to the north of the Lawson Bush, on its north side, that has been referred to? A. I did, sir. Q, Did you there find any . ., 4JOk-rl 35 afdm rl fd fd Pa, u m$ hc, C-b-lc,rlfd a, a, 'I-ICOk-c-' a, OU-40 73- 4JC c,CC a,COa,a, SO-4 k C,Ec,mfd U -4 % :-%J 2 .rloa~s $20 f3 4k c, om* - -wfda, 64
CPL. J. W. ERSKINE (For Complainant at trial) In chief
Yes, My Lord.
HIS LORDSHIP:
Will the Jury retire again, please,
--- Jury retire,
IN THE ABSENCE OF THE JURY
HIS LORDSHIP:
Mr. Donnelly?
MR. DONNELLY:
My Lord. The pictures were taken, if we look at Exhibit eight, we see a laneway along the north side of the bush. This picture was taken in this area, I just received copies of these pictures from the Inspector, It is true I saw them in my friend's office before the preliminary hearing, but they were not produced on the preliminary hearing and I asked Corporal Sayeau in regard to those marks, and if I may read from his evidence on the preliminary hearing.
HIS LORDSHIP:
That surely doesn't go to the admissibility.
MR. DONNELLY:
40 It simply shows that the marks, in his opinion, were made long before,
HIS LORDSHIP:
Isn't that something for you to cross-examine on?
MR, DONNELLY: CPL. J. W. ERSKINE (For Complainant at trial) Argument
Yes, but we are taken by surprise by this evidence because we understood that the pictures would not be produced. My friend indicated that they were not relevant and didn't give us any copies and we were -- if the marks -- they were made some time before this alleged incident, the fact that the marks were somewhat similar or similar to the tread on the bicycle tire is not material. The evidence must be relevant. If it doesn't show these marks were made on or about the date of this offence, I submit it is not relevant and not proper to put the pictures in.
HIS LORDSHIP:
That will be a very powerful argbment to the Jury.
MR. DONNELLY:
If it doesn't appeal to Your ~ordship,it might not appeal to the Jury.
HIS LORDSHIP:
Not as to admissibility.
MR. DONNELLY:
I can only say this. Evidence, to be accepted, must be relevant and if it is something that happened some time before, it can't be relevant to help whether this boy was in there or some other bicycle was in there some time before.
HIS LORDSHIP:
The officer said: "I took these pictures on the Saturday following the Friday. " 40 MR. DONNELLY:
Another constable says in his opinion they were made quite some time before when the ground was soft.
HIS LORDSHIP: CPL. J. W. ERSKINE (For Complainant at trial) Argument
Mr. Hays seems to think it has something to do with the case. I don't think I can rule it out on the grounds you put forward.
MR. DONNELLY:
Thank you, My Lord.
HIS LORDSHIP:
Bring the Jury back in.
--- Jury returned,
IN THE PRESENCE OF THE JURY
MR. HAYS :
Q. Did you take this picture at the lane (produced)? A. I did, sir. Q. And what do you see in the picture?
HIS LORDSHIP:
What is it a picture of? Surely that is the question.
THE WITNESS:
It is a photograph taken from a distance of seven- teen and a half feet north of the first tree at the fence line, showing a bicycle tire impression one inch to one inch. 40 It is in the same size as it appeared on the ground.
HIS LORDSHIP: I
Q. You have enlarged it to that size? A. I I put a ruler in the photograph. Q. You enlarged the photograph? A. Until it is identically the same size as it appeared on the ground. One CPL. J. W. ERSKINE (For. Complainant at trial) In chief
inch in the ruler. It was reduced in the camera and then brought up to a point where one inch would equal one inch.
MR. HAYS:
~eceivedas Exhibit twelve, My Lord?
--- EXHIBIT "12": Photograph of bicycle tire impression.
HIS LORDSHIP:
Show it to the Jury.
MR. HAYS:
(Produced) .
Q. .Did you take this next picture? A. I did, sir. Q. What is it a picture of? mere was it taken? A. This photograph was taken on Saturday, June the 13th, at 6:45 p.m., from a distance of seventeen and a half feet north of tree at fence line, showing bicycle tire impression.
HIS LORDSHIP:
Qo Is this the same tree you were talking about in the other picture? A. Yes, sir, the previous photo and this photo show bicycle tire marks approximately two hundred and twenty feet east of the easterly edge of the Township Road. Q. Just a moment. The easterly edge of Township Road. This Township Road, is that the road that runs to what side of the bush? A. It runs at right angles to the lane leading to the bush and is on the west side, My Lord. Q. It is on the west side of the bush? A. That is correct, sir, Q. And the lane is on the north side of the bush. Do I understand that? A. That is correct, My Lord. Q. And the tree that you start this from, seven- teen and a half feet north of the tree on the fench line; is that tree on the north side of the bush? A, It is on the edge of the bush, at the fence line. CPL. J. W. ERSKINE (For Complainant at trial) In chief
Q. Is it at the north-west of the bush? A, It is on the north of the bush. Q. Is it two hundred and twenty feet from the roadway? A. It is two hundred and twenty feet east of the easterly edge of the Township Road, yes. Q. Am I right in thinking it is on the north- east corner of the bush? A. That is correct, My Lord. Q. The north-east corner of the bush. The road running along the west side of the bush and the lane running along the north side and it is near the north-east corner of the bush? A. Yes, My Lord. Q. Two hundred and twenty feet east of the road? A, Yes, My Lord. Q. All right. Is there a fence there, wherever you say the tree is? A. Yes, there is a fence line running down the south edge of the lane, My Lord. Q. What kind of fence? A, A wire fence. Q. A wire fence. And the tree is seventeen and a half feet north of that fence line, is it? No, the tree is on the fence line. A. The tree is at the fence line, My Lord. Q, You took it from a point seventeen and a half feet north of the tree? A. That is correct, My Lord.
HIS LOR3SHIP:
All right, I have it.
--- EXHIBIT "13": Photograph taken from point seventeen and a half feet north of tree.
MR. HAYS:
I feel, My Lord, if one looked at Exhibit nine, you would see the error in the description. 40 HIS LORDSHIP:
What?
MR. HAYS:
You will see it is not in location. You referred 69
CPL. J. W. ERSKINE (For Complainant at trial) In chief
to the north-east corner of the bush.
HIS LORDSHIP:
I am just taking what the witness said. He is the witness. Not you. He said the road runs on the west 10 side of the bush and the lane is on the north side.
THE WITNESS:
I am sorry, My Lord. There is a large section of bush runs to the east of the bush I am referring to. The laneway goes down the length of just part of the bush, My Lord. It runs along the north side of part of the bush and then the bush jogs then to the north and again to the east.
HIS LORDSHIP:
Q. Are you correct so far as the bush touches the road is concerned? A, Yes, My Lord.
HIS LORDSHIP:
All right. Let me see Exhibit nine. I am not confused. Let the Jury see that. There is a part of the bush that goes to the road and part of it does not. There 30 is a jog in it, Gentlemen, as you can see.
MR. HAYS:
I show Exhibit thirteen now to the Jury, My Lord.
HIS LORDSHIP:
All right.
40 MR. HAYS:
Q. The next picture, Corporal (produced). A. Yes. sir. This was taken by me in one to one relationship on Saturday, June the 13th, at 6: 55 p.m. It shows a bicycle tire impress ion one hundred and twenty-three feet north of the position the head of the deceased had been. CPL. J. W. ERSKINE (For Complainant at trial) In chief
Q. Can you give its location with reference to the marks in either of the last two exhibits?
HIS LORDSHIP:
What?
MR. HAYS:
The bicycle marks.
HIS LORDSHIP :
I don't know which you refer to.
MR. HAYS: 20 Q. The last two Exhibits, the bicycle tire marks? A. This was to the east of the preceding two photos and ran in a general line with the marks shown in the last two photos. Q. Do you know how far to the east of the marks shown in the last photo or photos? A. No, sir, I did not measure that.
--- EXHIBIT "14": Photograph of bicycle tire impression.
MR. HAYS:
Q. In connection with these last -- let us put it this way. Did you come into possession of two bicycle wheels which I show you? A. I did, sir. Q. When? A. I received them from Corporal H. M. Sayeau on June 15th, at 9:25 a.m. Q. With reference to the last three photo exhibits, did you make any tests with relation to these wheels? A. Yes, sir. Q. Did you individualize between them, officer? A. Yes, they were Dunlop Sports tire, and ths rear wheel, a Carding tire. Q. Which is the front? A. You have the back wheel in your left hand. 71
CPL. J. W. ERSKINE (For Complainant at trial) In chief
HIS LORDSHIP:
Q. Dunlop Sports tire, and the other? A. Dun- lop Sports tire from the front tire, sir. The rear wheel was a Carding tire.
MR. HAYS:
Q. I have in my hand, which? A. The Carding tire. The big wheel. Q. Did you make any tests in relation to it? A. I did, sir.
MR. HAYS:
I tender this as Exhibit fifteen. What test did 20 you make in reference to that?
MR. DONNELLY:
Surely my friend is going to identify the wheel better than that before he puts it in.
MR. HAYS:
I will be calling Corporal Sayeau to tell where he got these.
MR. DONNELLY:
I think it should be subject to identification, Your Lordship.
HIS LORDSHIP: I I This is going to become very difficult to remember 40 what has been proved and what has not been proved. You are going to call someone to prove where these tires came from? I MR. HAYS: Yes. I
HIS LORDSHIP: CPL. J. W. ERSKINE (For Complainant at trial) In chief
And you will have to connect them to the accused in some way or else they should not be here at all. You are doing these things backwards.
MR. HAYS:
I could not .,.
HIS LORDSHIP:
You could do it the proper way.
MR. HAYS:
I could not get Corporal Sayeau in first.
HIS LORDSHIP:
I will mark it Exhibit fifteen on your undertaking it is going to be properly proved.
MR. HAYS:
I make these undertakings on my understanding of what the witness will say.
HIS LORDSHIP:
It is not admissible at all at this stage of the case, the way you have put it in. I am only letting it in as Exhibit fifteen on your undertaking that it will be made relevant.
MR. HAYS:
My undertaking is that I will attempt to do so 40 and I believe I have the ability.
I can't undertake what a witness will say.
HIS LORDSHIP:
You are not giving an undertaking it will be proved? 7 3
CPL. J. W. ERSKINE (For Complainant at trial) In chief
MR. HAYS:
I will seek to prove it and it is my understanding it can be.
HIS LORDSHIP:
No, I won' t mark it then. If you are not prepared to undertake it will be proven, then it is not going to be marked until it is proved. I will mark it for identification. That is all I will do,
--- EXHIBIT "B": For identification rear wheel and tire of bicycle.
MR. HAYS:
Q. In reference to this Exhibit "B", what tasts did you make? ' A. I compared the tread with the marks as shown in the photograph and found .. . Q, NOW, photographs numbered twelve, thirteen and fourteen (produced). A. In photograph number thirty-eight. Q. No, no. That is your number. The Court's number? A. Number fourteen, Q. I might hold that up. A. There is a series of vertical lines in Exhibit fourteen which there are marks 30 on the side of the tires similar to marks in the photograph. Q. Can you make any comparisons with either of the other photo exhibits? A, With this wheel? Q, With the one in as "B". The front one? A. No, sir. Q. Or the rear one. "B", in any event.
HIS LORDSHIP:
Q. The answer is "nou? A, NO, sir. 40 MR. HAYS:
And this other wheel you define as .. . A. Yes, sir, that is the Dunlop Sports tire. Q. And from what source did you say it is, originally? A. I received them from Corporal H. M. Sayeau on June 15th, at 9: 25 a.m. My signature is on the card I c, C, k 0 -4 rd 8 c, s r=rl c, a, G c, a, a, U W+-?$ rd a, C kc, -n fd .rl 0 3 rd m 2 s . 0 rl 'U rl k !4 -rl 0 Q) 3 d c, rd s rl . 0 v a I= 5 c, id U -rl U rl d w -PI h W 9 a, 0 W - S G w tr 3 fd C 0 -4 5 C - rl 9 2 0 8 c, tr 0 [I) m [I) =I .rl [I) 0 5 rl h Po c, rl h F: rl fd L) rl 2, -$ 5 fd U rl w a - rl rn c, m C Q) Q) U TI a, rl k CPL. J. W. ERSKINE (For Complainant at trial) In chief
Yes, My Lord.
--- Jury retired.
--- Accused retired.
--- Whereupon there was a short recess.
___ Upon resuming. --- Accused returns.
--- Jury returns.
DEPOSITION OF CORPORAL JOHN WATSON ERSKINE (continued)
CORPORAL ERSKINE
resumed:
MR. HAYS:
Q. Corporal, I show you a coloured picture. Did you take that? A. I did, sir. Q. When? A. On Monday, June the 15th, between the hour of 7:25 p.m. and 7:40 p.m. Q. What is it a picture of? A. This is a picture of a 1959 Belair Chevrolet sedan, Snowcrest white, with white walled tires, bearing a yellow Nova Scotia 40 licence number 7-52-93, on the rear thereof. Q. And where was the car situated when you took the picture? A. At the intersection of Number Eight High- way and the Township Road which leads to the bush. Q. Where the body was found? A. Where the body was found. Q. And where were you standing when you took the picture? A. Just to the rear of the car. --- EXHIBIT "15": Coloured photograph of car. CPL. J. W. ERSKINE (For Complainant at trial) In chief
Q. This one (produced) ? A. Yes, sir, that was taken .., Q. Pardon me. Who was present when you took that last picture? A, Sergeant Anderson, Constable Moore, Corporal Sayeau and I believe Provincial Constable Tremblay. Q. The picture I just handed you, did you take that? A. Yes, sir. This is a photograph taken at the same time and is a close-up of the rear and right side of the aforementioned vehicle, at this time with orange Quebec markers, number 51-9-10 on the rear thereof.
HIS LORDSHIP:
Q, With Quebec markers? A. Yes, sir. Q. Is this the same car as in Exhibit fifteen? A. The same car as in Exhibit fifteen, My Lord. Q. And the same persons present? A. Yes, sir.
--- EXHIBIT "16": Photograph of car with Quebec markers .
MR. HAYS:
Q. This one (produced) ? A. This was taken by myself on Monday, June 15th, between the hours of 7:25 p.m. and 7:40 p.m. from the north end of the Township Bridge, looking north, showing the above vehicle with the Quebec plates on the rear, just to the east of the intersection of Number Eight Highway and the Township Road, a distance of one thousand, two hundred and fifty feet away. Q. You refer to the Township Bridge. On what road? A. That is on the Township Road leading to the bush where the body of the deceased was found.
HIS LORDSHIP:
40 What did you say about twelve hundred feet? A. It is 1,250 feet from the position I was standing to where the car was placed. Q. You are standing where? A. At the north end of the bridge, My Lord. Q. And the car is 1,250 feet to the south of you? A. To the north of me, My Lord. Q. To the north? A. To the north. 77
CPL. J. W. ERSKINE (For Complainant at trial) In chief
--- EXHIBIT 'I 17" : Photograph taken from Bridge looking north.
MR. HAYS:
Q. This one? Did you take it? A. I did, sir. 10 This is from the same location.
HIS LORDSHIP:
Q. That is the north end of the Township Bridge? A. That is correct, My Lord, looking north. This time with the car bearing the Nova Scotia plates, slightly to the east of the intersection of Number Eight Highway, a distance of 1,250 feet.
--- EXHIBIT "18": Photograph looking north from bridge.
MR. HAYS:
Q. And this one? Did you take it? (Produced). A. My Lord, I made a mistake. That previous photo was with the Quebec markers on the back of it and backed up into the intersection. .I am sorry, My Lord.
MR. HAYS:
That is eighteen you referred to?
HIS LORDSHIP:
Q, Instead of slightly east of the highway? A. Instead of on an angle slightly east, it was backed up. Q. Into what? A, With the back parallel to the course of the road. 40 Q. The Township Road? A. The owns ship Road, My Lord.
HIS LORDSHIP:
Let me see the picture, please. (Produced). I can't even see the car in the picture. CPL. J. W. ERSKINE (For Complainant at trial) In chief
MR, HAYS:
May I let the witness see that again?
HIS LORDSHIP:
Yes, look at it,
MR. HAYS:
Q. This is the one you are referring to, eighteen? A. Yes, sir, that is with the car backed up, with the rear of the car facing the camera.
HIS LORDSHIP :
20 Q. You can see the car, can you? A, I can see the outline, My Lord.
HIS LORDSHIP :
The outline,
MR, HAYS:
Q, You made reference of parallel to some road, 30 What was your reference?
HIS LORDSHIP:
Q. The car is parallel with the road. Up and down or across the road? A. No, it is up and down the road, My Lord.
MR.. HAYS:
Q, The Township Road? A, The Township Road,
HIS LORDSHIP:
Show it to the Jury. Their eyesight has to be better than mine,
MR. HAYS: CPL. J. W. ERSKINE (For Complainant at trial) In chief
Yes, My Lord, (Produced),
HIS LORDSHIP:
Proceed, Mr. Hays.
MR, HAYS:
Yes.
Q. The one you have in your hand? A. This is a photograph from the same location with the car in this case, the same distance away, 1,250 feet, and it is angled slightly. You are looking at the rear and right side of the car. At this time it is bearing the Nova Scotia plates as shown in the earlier photo. 20 --- EXHIBIT "19": Photograph looking north \ from bridge of car bearing Nova Scotia licence plates.
MR. HAYS:
I will show this to the Jury, My Lord.
Qo And the final coloured picture. Did you take it? A. I did, sir. Q. What is it a picture of? A. This is, again, taken from the north end of the bridge, looking north a distance of twelve hundred feet, showing the car in this case, again, with its back towards -- the back of the vehicle towards the camera. Q. You are standing in the same location? A. I am standing in the same location.
--- FXHIBIT "2 0": Photograph looking north from bridge.
Q. Can we say in reference to all these coloured pictures, that the same group was present as referred to be- fore? A. There were, I believe, Inspector Graham, and Constable Tremblay arrived while we were taking them. Q. Which one? A. ~nspectorGraham and Provincial Constable Tremblay. 80
CPL. 3. We ERSKINE (For Complainant at trial) In chief
Q. In respect to which pictures, Corporal? A. In respect to these latter two and perhaps the two that preceded that. Q. What persons were prese~twith you through them all? A. Sergeant Anderson and Corporal Sayeau and Provincial Constable Moore. 10 Q. Were they all taken on the same day? A. They were, sir, between the hours of 7:25 p.m. and 7:40 porno, on Monday, June 14th. Q. Were you standing in the same place at all times? A. Yes, within a matter of inches, I may have shifted my feet slightly. Q. What was that position with respect to all this Exhibits, as to where you were standing?
HIS LORDSHIP:
He has told us the north end of the bridge.
Q. Is there some change in that now? A. No, sir, the shift I mentioned was just while I was changing the film in the camera. I may have taken a step to the left or ri.ght.
MR, HAYS:
30 Q. Did: you take this picture? (Produced) A. Yes, sir. Q. At the same time and place? A. The same time and place, sir. Q. And the same persons present? A, The same persons. Q. What is that? A, From the north end of the bridge looking to the north a distance of 1,250 feet showing the car at angles to the Township Road. At an angle. Q. That is a black and white picture? A. Black 40 and white of the similar scene as shown in the last coloured photo. Q. Number nineteen. (Produced), A. Yes, sir. The car was in the same location as when I took the black and white one. Q. When I asked you where you were standing, you said at the north end of the bridge. Could you be more specific? Exactly at the end or otherwise? A. I was CPL. J, W. ERSKINE o or Complainant at trial) In chief
approximately to the centre of the last two pillars to the east, to the north-east end of the bridge. Q. Can you give us in feet how far you were from the actual north end of the bridge? A. No, sir. It would be just a matter of a short distance.
--- EXHIBIT "21": Photograph looking north from bridge.
Q. Will you pass that along, with the Judge's permission, hurriedly, Gentlemen. Now, this final picture. (Produced). Did you take it? A. I did, sir. It is a general view. This was taken on Thursday, June 25th, at 12:15 p.m. It is a general view at the location where the body was found, showing Corporal H. M. Sayeau pointing to broken saplings. Q. There are stakes visible in that picture, Corporal? A, Yes, sir. Q. Who put those in? A, I did. Q. When did you do that? A, On the afternoon of Thursday, June llth, just prior to the removal of the body. Q. At what positions did you put the .stakes? A. 1 placed one stake at the head of the deceased. One at either hip.
30 HIS LORDSHIP:
Q. This is on June 25th? A. No, on Thursday, June llth, My Lord. Q. You put the stakes in on Thursday. Is that what you are saying? You put the stakes in on Thursday? A, No, I put the stakes in -- yes, Thursday, June 11th. I took this photo on June 25th, My Lord. Q. Just answer the question without going into something else. What day did you put the stakes in? A. 40 Thursday, June 11th. Q. What day did you take the picture? A. Thursday, June 25th.
MRo HAYS:
Q. And are the stakes in the same position when the picture was taken as when they were inserted by you in CPL. J. W. ERSKINE (For Complainant at trial) In chief
the positions you have related on June the llth? A. Yes, sir.
HIS LORDSHIP:
Q. Is that one stake? A. One stake, My Lord, at the head of the deceased. Q. The head, yes. A. One at either hip. Q. At either hip, A. And one at the toes of each foot. A total of five stakes,
--- EXHIBIT "22": Photograph of stakes in bush.
MR. HAYS:
Q. Did you subsequently or at any time make a 20 measurement of the distance between any of these stakes? A, I did, sir. Q. What measurements did you make?
HIS LORDSHIP:
Mark that and show it to the Jury.
MR. HAYS :
Will you pass that down, Gentlemen?
HIS LORDSHIP:
Q, Tell us when you made the measurements? A, Not until Monday, July 6th, My Lord. Q. Monday, July 6th? A. Yes, My Lord.
MR. HAYS:
40 Q. Were the stakes then in the same position as you inserted them on the llth? A. Yes, sir. Q. And what measurements did you take or arrive at? A. From the stake at the head to the stake at the hips on the right side was two feet one and a half inches. From the stake at the hip on the right side to the stake at the right toes, was three feet four inches. From the head stake to the stake at the hip on the left side was two feet CPL. J. W. ERSKINE (For Complainant at trial) In chief
five inches. From the hip stake on the left side to the stake at the toes was three feet seven inches. The distance between the stakes at the hip was one foot. The distance between the stakes at the toes was two feet three inches. From where the crotch of the deceased had been was a distance of thirty-one to thirty-three inches. Q. That is from the crotch to where? A, To the toes. Q. On which foot? A. I took a general measure- ment of both feet. The difference being two inches. Q. Oh! I see. Do you know which was thirty-one and which was thirty-three? A. The one to the left was thirty-three and the one to the right was thirty-one. It was angled.
HIS LORDSHIP: 20 Q. The left side or your left? Which left? A. Where the left leg of the deceased had been. Q. Was thirty-three? A. Thirty-three, sir. The right leg, thirty-one.
MR. HAYS:
Q. Did you at any time take any measurements of the accused, of the person of the accused, Steven Truscott? 30 A, I did, sir. Q. When and where? A. I took them on July the 7th, at 2:22 p.m. I took measurements from the crotch to the floor, along the inner side of both legs and the distance was thirty-three inches. I also took the measure- ment of both arms. The arms with the middle finger extended and from the armpit to the extended middle finger of the right hand a distance was twenty-nine and a half inches. From the armpit of the left arm to the extended middle finger was thirty inches. 40 Q. Did you take his height? A. I did, sir. His height was five feet eight and a half inches in his shoes. Five feet eight and a half inches in his shoes. Q. Yes. And at some stage did you instruct the preparation of plans of the areas in question by some one? A. I pointed out the area toMr. Burns. Q. The surveyor? A, The surveyor. Q. Burns, Ross? A. Yes, Mr. Burns Ross. CPL. J. W. ERSKINE (For Complainant at trial) In chief
HIS LORDSHIP:
Q. I didn' t hear the name? A, Mr. Burns Ross, My Lord.
MR. HAYS:
Q. Were you present when Mr. Ross did his surveys at any time? A. Just for part of the time. Q. And with respect to the area of where the stakes were inserted by you, at the time did Mr. Ross make any survey of that area? A. Yes, sir, I pointed out that area to him. Q. Were the stakes in the same position when he made his survey as you had put them initially, at the various parts of the body, prior to its removal on June the llth? A. Yes, sir. Q. And with respect to any marks, such as were shown in Exhibit two, which was a photograph taken by you on June the llth, Corporal, at the time that Mr. Ross made his survey of the staked area, was there any change in those marks then with when you took that picture on June the llth? A. ,No, not particularly, sir.
MR. DONNELLY:
I couldn't hear the witness.
HIS LORDSHIP:
No, not particularly.
THE WITNESS:
No, not particulary, sir.
MR. HAYS:
Excuse me a moment, My Lord. I am finished, My Lord.
CROSS -EXAMINATION BY MR. DONNELLY: CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
Q. Corporal, you have been on the Identification Branch for six and a half years? A. I have, sir. Q. And you specialize in that type of work, I take it? A. I do, sir. Q. I show you Exhibit twenty-one and Exhibit twenty and also nineteen. Nineteen and twenty are coloured pictures, are they not? A. They are, sir. Q. And I suggest to you that twenty-one is a black and white? A. That is correct, sir. Q. And the black and white shows the situation much more clearly than the coloured. Things are much clearer in the picture, are they not? A. The black and white one was taken with the lens at a different angle. Q. Will you answer my question? Exhibit twenty- one shows the scene much more clearly than the coloured pictures which you have in your hand, Exhibit nineteen and twenty? A. Yes, sir. Q. Yes. I am suggesting to the Constable -- you will have these in your Jury room and you can look at them later on. (Produced). NOW, you examined this wood pretty carefully, didn't you? A. I beg your pardon? Q. You examined this area in the woods pretty carefully? A. The area at the scene? Q. The area in the woods where the body was found? A, Yes, sir. Q. You spent many days in there, didn' t you? 30 A. Yes, at various times, sir. Q. Over what? A month or six weeks, probably? A. Roughly a month. Q. How many days would you be in there in that month? A, I would have to look that up. I would say a matter of half a dozen or eight times. Q. Pardon? A. Half a dozen or eight times, or maybe more. Q. Yes, Take the area where the body was found in a radius of fifteen or twenty feet around that. I 40 suggest to you that there were twigs and little flowering plants and growth of that kind? A. Yes, sir. Q. Yes. And I suggest to you that there was no grass growing in that area? A. None that I recall, sir. Q. Yes. You don't recall any grass growing in that area at all, do you? A. Not in the immediate area, no. CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
Q. Did you see any in the bush at all? A. I believe at the edge of the bush. Q. Possibly at the edge of the bush. That would be some ninety or one hundred feet from the point where the body was found, was it? A, I wouldn't believe it would be that far, sir. 10 Q. How far would it be, then? Eighty feet, I suggest.
HIS LORDSHIP:
Which edge do you refer to, Mr. Donnelly?
MR, DONNELLY:
Q. I believe the north edge was the closest edge, 20 was it not? A. Yes, sir. Q. mat edge is closer? A, I am not too certain of that measurement. Q. We take it you made a very complete and thorough search of this area for marks and whatever you'might be able to find. When I speak of the area, I speak of the area where the body was found and within thirty or forty feet of that point; is that right? A. Other officers and myself did, yes. Q. And you found no grass in your searches in 30 this area within thirty or forty feet of the body? A. Well, there again, sir, I am thinking that the fence was closer than the eighty feet that you suggested and there was grass there, sir. Q. Can we put it this way, that there was no grass closer to the body than the fence along the north side of the bush? A. Not that I recall seeing, no. Q. And you make that statement after this thorough examination extending over a number of days. That is right, isn't it? A. Yes, sir. 40 Q. Yes. Now, if I may go back to Exhibit twenty- one again. Have you a rule with you? A. I have, sir. Q. And will you scale the road down at the corner where the car is? A. When you say scale, the width of it, sir? Q. The width of the road as it is shown in the picture? A, About one centimetre. Q. Would you put it in inches, please? A. 87
CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
Roughly three-sixteenths of an inch. Pardon me, three- eights of an inch.
MR. DONNELLY:
Three-eighths of an inch, yes.
HIS LORDSHIP:
That is on the picture. You are measuring on the picture.
MR. DONNELLY:
Yes, on the picture. A, Yes, sir. Q. Do you know the width of the road there in actual feet, Corporal? A. NO, sir. Q. So if the road was twenty-two feet wide, what would the scale then be? It would be about one to a thousand, would it?
HIS LORDSHIP:
One inch to a thousand inches? One inch on the map would be a thousand inches on the ground.
30 MR. DONNELLY:
Q, It would be a thousand times wider than it looks there, is what I was getting at. Three-eighths of an inch or closer to a quarter of an inch, Corporal? A. Are you speaking of the mouth of the road? Q. I am speaking of the paved portion of the road, not where it widens out. A. It would be about three- eighths, slightly under, maybe. Q. I suggest to you then, that three-eighths of 40 an inch represents twenty-two feet? A. Yes, sir. Q. To get that scale you would have to multiply twenty-two by twelve to bring it to inches? A. Yes, sir. Q. And we have two hundred and sixty-four inches? A, Yes, sir. Q. And three-eighths, we would have to divide by three-eighths to get the scale, and that would bring it out to between nine hundred and a thousand, wouldn't it? CPL, J. W. ERSKINE (For Complainant at trial) Cross-exam.
A. I am not too certain, sir. Q. Three would go into twenty-six eighty-eight times, wouldn't it? A. Yes, sir. Q. Multiply by eight would be about seven hundred and fifty? A, Yes, sir. Q. So that the car was actually seven hundred and fifty times bigger than shown in that photo of yours? A. If you are right up on top of it, yes, sir. Q. And the man we see there is a police officer. You can see that, can't you? A. Yes, sir. Q. And how tall does he appear to be? A. About one-sixteenth of an inch. Q. And who was the constable? A. Corporal Sayeau and Sergeant Anderson. Q. Sergeant Anderson would be six feet two or three, wouldn' t he? A, Yes, sir. Q. And Corporal Sayeau, well over six feet? A. Yes, sir. Q. And they appear there one-sixteenth of an inchhigh? A. Yes; sir. Q. Now when you took the pictures of the vehicle in Exhibits fifteen and sixteen, it was at a slight angle to the number Eight Highway, which we may speak of as running east and west? A, Yes, sir. Q, And the sun was shining almost directly in line with the vehicle, the way it was pointing, wasn't it? The reason I say that, is because of the shadows under the vehicle? A, Yes, sir, that is correct. Q. So at the time that picture was taken the sun would he shining directly on the rear of that vehicle when it was in that position? A, That is correct, sir. Q, Yes, thank you. The shadows, on Exhibits twelve, thirteen and fourteen. Pictures of the marks in the dirt made by some bicycle tire? A. Yes, sir. Q. Yes. I suggest to you these marks would be made in these pictures when the ground was wet? A. Yes, sir. Q, Yes, When these pictures were taken it was on the 15th of ., . I believe ., , A, The 13th of June. Q, That was Saturday, the 13th. It is quite apparent this was hard-baked clay shown in these pictures twelve, thirteen and fourteen? A, Yes, sir. Q. The ground there is baked very hard? A. It is, sir, m 4J -4 a, a; a, c'. a s a $0 C, z -4 C, fd C, J-, -4 c -4 * c'. Q) E -4 -4 4J GC2 Q)4J kC, C, W Q) >a a,0 - tn a, s -4 m C G3 Ga, rl a 5 0-4 3a m7 4 fd-4tok :@a, 4Jm km -4CrnC 3 Am@ u ~rn3rd~m AX pl 3 *fd OEfd C,m fdy$ 3; Q, J-, -,G E -4C % 5Uw4JmC -4ofdu am -40 3 k,c a, m 0-4 Q) - Q kS.95 mO5k k - J-,5 =4UGOrda, a, c -4 .rU rd 7UE3C C,.G tnC5Od Q,WO rd-4 -4-V fd Q) CO 30. k !-I-4 3sm 00 a, a, :sg c c 3202; 0 S k 033 fd k 3s s 4J 04Ja 30 a UC 2 a,a, -4a,3 rd~)~,cmg0s ~tnrd-d~-,* 0 z2m c U ka)mtn ,GrCfd4J3u 9alkm-d mrl -PI Q) wrlk Q)U W mB4JfGsEZ okum a,c,rl c 3 a, 7 E3XOa, -4 0 0 -U m5 @UW~0-drl 3 PI U-4 hd 0 e;: . z . .-4nm 111 04 4 0 -4 fd 4 OX OX k C* k U 0 c, C, m m k 0 00-4 -rlC-d+, W USE$ dP.3 &If: h 0 " fd4JOP. woo c a, m u 0.m Otn a)C O~~a,W~S3 .A,G5H@ Crl I4 clcm~ma, c ~JCFW&~ -4 7.4 ;; m rd a," I -4 omga ha,@ rd DC o 0s -a" g$clSgkrd4JQO 4J4J 3C a=IrdC,3 4J v-Ar6w mmw ~2h"Za4"I - a s w alw a, s C Sa, C k -0 5 @I=U 0 XU -c k C u ~rn~-~HE:rdP.H~C)~cnEHIOHGg 8 CIWrnrnr~fdr~C tA a, a,ka,kOmfd 0 5 .rl 7 a, @k +r a, a 0 a Q)"4 3mc. m E,N C, -4 Q) 3 c a rtl 0 fdC, .hH .m .mm .a.urn a 0;wa~wC '"kmdzaa-t:3,gag-4 0; 10-0; 4 m w rd $:$ fdk 'u -4 +, 'CI X 0 ggk 0; % C alU 0. a,& 5 4J -4 da, rds ufd o -'8 Gu -do+, "5 6 awm @a, 4Jrr.m a, X"0. w 2 C$ SE ~ tF > G p gmS s* PI fd* CI kO ma E; 4ZfE +, cu u 3: 0 Q, @Old -4 C Q) 0 E Eg 5 ow Q) 3k k 0 -rl k .rl m 5 a omH $2 8E-: mm a mk tr m-4 25 ;5 90
CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
Q. The fence was alongside of the north side of the bush? A, That is correct, sir. Q. The fence didn't extend past the bush? A. Not in this area. Q. To the east, it jogged to the north thirty or forty rods? A. Yes, sir. Q. That is shown in the picture. You are not in a position to help us how long before these marks were made? A. I would say since a rain, sir. Q. Since a rain. From the pictures of the con- dition of the ground shown in them, it was quite some time since there had been a rain? A. Yes, sir. Q. NOW, you said you compared the marks in these pictures, Exhibits twelve and thirteen, with the tires on these bicycle wheels. Did you compare them by eye, only? Just by looking at them? A, No, I inked the tires and made rolled impressions of the tires, sir. Q. On what? A, Onto cardboard. Q. Cardboard? A. Yes, sir. Q. You put them on paper, I take it? A. No, onto the cardboard, itself. I rolled the ink into the rubber tire and then rolled the bicycle tire onto the card- boar d . Q. Yes. NOW, are you in a position to tell us whether or not this Dunlop Sports tire is a tire frequently found on the type of bicycle in this case? A. NO, I am not, sir. Q. Are you in a position to tell us whether or not the Carding tire -- have I got that word right? A. Cardine. Q. Cardine tire, is one that is commonly used on bicycles of this type? A. No, sir. Q. Look at Exhibit six. This is Exhibit six, is it not? A, That is correct, sir. Q. Will you take a look at the picture? That shows the Township roadway? A, It does, sir, Q. And I think you told us that was taken seventy-five or ninety feet north of the laneway on the north side of the road? A. Approximately seventy-five feet, Q. Approximately seventy-five feet, and that shows the condition of the east shoulder of the road as it runs south past the bush where the body was found? A. Yes, sir. 91
CPL. J. W, ERSKINE (For Complainant at trial) Cross-exam.
Q. Yes. And it shows the condition of the lane from the road to the shoulder, does it not? A. It does, sir. Q. And it shows little or no growth in that area between the fence and the shoulder, does it not? A. There is growth in the foreground, sir. Q. There is growth to the north. I will show you this in just a minute, if I may, please. There is growth to the north of the driveway or laneway running along the northerly side of the bush, is there not, in the foreground? A. To the northerly? Q. North of the entrance to the driveway? A. Yes, sir. Q. And south from the entrance to the driveway, along the bush, there is little or no growth shown in the picture; is that a fact? A. There is growth up near the fence, sir. Q. Can you not see the fence posts? A. ND. Q. \The iron stakes in the fence? A, Yes, sir. Q. And you can see them right down to where they enter the ground, can't you? A. Yes. Q. While there is some growth, it is short? A. Yes, it is short. Q. There is some short growth. Any growth would be a matter of a very few inches in height? A. Yes, very few inches. Q. What I was indicating is that there was very little growth as indicated in this picture. (Produced). Were you present when any necklace was found? A, No, I was not, sir, Q. You measured the boy and you said his feet were thirty-three inches from the crotch down along the leg to the ground in both right and left legs? A. That is right, on the inner side of the leg from the crotch to the floor, thirty-three inches. Q, Is that with shoes on? A. That is with shaes on, yes, sir. Q, And I believe you measured the leg of the girl and you found one to be two feet seven inches, was it? A. Thirty-one to thirty-three inches. Q, Twenty-one to thirty-three inches? A. Thirty-one. Qo The reason was, one leg was bent? A. One leg was angled slightly. 92
CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
Q. It wasn't fully extended? A. That is correct, sir, Q. The left leg was thirty-three inches long? A. From where the crotch had been to the toes was thirty- three inches, Q. Her leg was thirty-three inches long? A. Yes, sir, Q. Yes. And you have no reason to doubt that her right leg would have been the same length, if extended? A, No, sir. Q. So that we have the girl's legs without shoes the same length as the boy's with shoes, thirty-three inches? A. Yes, sir, Q. Yes. Well then, look at Exhibit two, please. You see some marks there, to the west of the feet, do you not? A, Yes, sir, Q. And I understood you to tell my friend that the marks at the right foot extended from six to seven inches westerly from the most westerly part of the foot? A, Yes, sir. Q. I suggest to you, if you look closely at the picture, you will find that the marks doesn't extend up to the foot and that you find twigs and debris in the same state as we see in the other areas, between this mark and the feet. I have a copy of this given to me by the Crown. May I show this to the Jury while I am examining the witness?
HIS LORDSHIP:
Is it an Exhibit?
MR. DONNELLY:
Well, it is a copy.
HIS LORDSHIP:
All right, you can show it to them and it will become an Exhibit. k MR. DONNELLY:
I don't see any advantage of having two exhibits? CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
HIS LORDSHIP:
What is the number of it?
MR. DONNELLY:
10 Exhibit two. All I have is the copy of the Exhibit.
HIS LORDSHIP :
Oh! you may show a copy of the Exhibit, of course.
MR. DONNELLY:
This is a copy of the Exhibit that the witness 20 has in his hand. (Produced).
Q. I suggest to you, Corporal, between the mark to the west of the right foot and the right foot, there is an area there that is not disturbed? A. Sir, would you repeat that question again? Q. Maybe I am not making myself clear. Would you look at the picture? A, Yes, sir, Q. You see the right foot? A. Yes, sir. Q. And you see the marks? A, Yes, sir. 30 Q. I suggest that between the mark and the foot, there is an area on the ground where the surface appears not to have been disturbed? A, Yes, sir, near the heel. Q. So this mark starts, what, three or four inches west of the right foot? A. No, six to seven inches. Q, It extends that far? A, No, it runs for eleven inches, sir, Q. It runs for eleven inches? A, Yes, Q. The mark starts six or seven inches west of the right foot? A, The mark is on an angle to the length 40 of the leg. It is six to seven inches and runs a distance of _eleven inches, Q. It runs a matter of eleven inches if we may say, north and south? A. Yes, roughly north and south, Q. Yes, You agreed with me there was an un- distur-bed area between the foot and the mark, and I am trying to get the width of the undisturbed area. A. There is an area undisturbed, which is to the west of the heel, CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
itself. I don't know the measurement of it, Q. You don't know the measurement of it? A, No, sir. Q. This picture, Exhibit two, shows that the por- tion of the mark below the right foot and the portion of it closest to the left foot. If I don't make this clear, let 10 me know, please. I suggest to you that this Exhibit two shows that the mark just below the right foot, that the southerly end of that mark that is the mark towards the left foot? A. Yes, Q. Is considerably further west than the northerly part of it? A. Yes, sir, Q. In other words, it runs in quite an angle? A, It does run at an angle, yes, sir. Q, An angle of what? Forty-five or fifty degrees? A, Oh! it wouldn' t be that much, sir, Q. What angle do you say? A. Oh! roughly ten degrees. Q. You think the picture only shows ten degrees there? A. You are taking a line with the leg, itself, sir? Q, Yes. A. Oh! I would say just about ten degrees, sir, Q, And the mark to the west of the left foot, the picture shows to the northerly end of it is considerably west of the southerly end, does it not? A, Yes, sir. Q. And we are speaking of the body as if it were laying east and west? A, That is correct, sir. Q, So that we have the outsides of these marks closer to the shoulders than the inside would be? A. That is correct, sir, yes, Q, Yes, The insides of these marks are further away from the body than the outsides of the marks? A, That is correct, sir,
HIS LORDSHIP:
Let me see the picture, please. I don' t know that I understand that very well, (produced).
MR. DONMELLY:
Q, NOW, you told us that the mark below the right foot was eleven inches long and extended a distance of six to seven feet west of the feet? A. Six to seven CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
inches, sir.
MR. DONNELLY:
What did I say?
HIS LORDSHIP:
Feet, You obviously didn't mean feet.
MR. DONNELLY:
Yes, six to seven inches.
Q. NOW, take the left foot. How far west of the left foot did the mark extend? A. It ran right up 20 and touched the toes. Q. That is not what I asked you. I said how far did it extend from the foot? A, Ten inches, sir. Q. Now, these marks were very indistinct, were- n ' t they? A. I found them that way, sir. Q. Pardon? A. I said I found them that way, sir. Q. And you examined them carefully? A. Yes, sir. Q. How much time did you spend examining them? 30 A. Well, I examined them at various stages, sir. Qo Take the first day. I suppose you would examine them then, would you not? A. Yes, sir. Q. How much time would you spend the first day examining them? A. You mean in minutes, sir? Q. Yes. A, That would be pretty hard to estimate, sir. Q. You would have moretime the next day, wouldn't you? A. Yes, sir. Q. May we take it you made quite a thorough 40 examination of these marks the next day? A. Yes, sir. Q. Yes. And you examined them again on succeeding days, didn't you? A. I did look at them on succeeeding days. Qo Did you examine them closely then? A. No, sir. Q. Were the marks so indistinct that you couldn't accurately measure them? A. I measured one to CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
be eleven inches and the other to be ten inches, sir.
HIS LORDSHIP:
The eleventh was on Thursday? A. Yes, My Lord.
MR. DONNELLY:
Q. You were unable to make out anything except the general outline of the mark, I take it? A. There was what appeared to be the imprint of a heel, sir, but I wasn't able to get a measurement of it. Q. It was so indistinct you weren't able to measure it accurately? A. That is right.
HIS LORDSHIP:
What was your purpose of going to this place? Just to take pictures? A, Yes, sir. Q. I see, A. And Criminal Identification Duties, sir. Q, Does that include a search of the area? A, It does, at time, yes, sir. Q. Did it in this case? A. Yes, sir, Q. Wouldn't you make the most thorough search you could on the first day you were there? A. I did, sir, yes. Q. You would never hope to get any marks fresher than the first day? A. No, that is true, My Lord.
MR. DONNELLY:
Q. Your purpose in going there, arporal, was to be of assistance in the investigation? A. That is correct, sir. Q. As a Specialist in Marks? A. As an Identi- f ication Officer, sir. 4 40 Q. As an Identification Specialist? A. Well, officer. Q. Officer. All right. And part of the duties of the investigation officer is to get all the information they can about marks, That is right, isn't it? A. Yes, sir, to assist the officers at the scene, Q. To assist them because you have more experience in that than the officer, the ordinary officer, CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
isn't that right? A. Yes, sir. Q. You have special training? A. Yes.
HIS LORDSHIP:
Q. In what? Photography or looking or searching or identifying? Which? A. Photography and fingerprinting and so on, My Lord.
HIS LORDSHIP:
We haven ' t heard anything about fingerprinting yet.
MR. DONNELLY:
20 Q. Have you special training in identification? A. Yes, sir. Q. 'And identification includes the measuring and investigating of footprints or marks made by feet or shoes? A. Yes, sir. Q. So that these marks were right in your specialty, weren't they? A. Yes, sir. Q. And that investigation was carried on by you? A. Yes, sir. Q. Now I suggest to you that these marks were so 30 indistinct that you couldn't attribute them to any particular type of shoe? A, No, sir. Q. And they were so indistinct that you couldn't compare them with any object which you might think might be relevant to this crime? A. That is correct, sir.
HIS LORDSHIP :
I must adjourn now, Mr. Donnelly.
40 Will you step down, Officer, please?
THE WITNESS:
Yes, My Lord.
--- Witness retired. CPL, 3. W. ERSKINE o or Complainant at trial) Cross-exam.
HIS LORDSHIP:
We are going to adjourn for the evening, Gentle- men, and I want you to be very particular about observing the warning that I gave you at lunch time, that you are not to speak to anyone about this case and don't let anyone speak to you about it, and if anyone attempts to speak to you about it, report them to me. Please don't discuss it as yet. I don't think you should discuss it among your- selves. I am certainly not saying you can't do all the talking you like among yourselves, but it would be unwise for you to do so.
Now, I hope the sheriff has made satisfactory arrangements for you for the night, and if he hasn't, don't hesitate to make demands on him to make yourselves comfort- able. Youmaynowretire.
--- Two Constables sworn to attend the Jury.
--- Jury retired.
--- Accused retired. --- Whereupon the further proceedings were then adjourned until ten o'clock, tomorrow morning. CPL. J. W. ERSKINE o or Complainant at trial) Cross-exam.
THURSDAY, SEPTEMBER 17TH, 1959
--- Upon resuming:
--- Accused prsent.
--- Jury present.
HIS LORDSHIP:
The witness.
DEPOSITION OF CORPOW JOHN WATSON ERSKINE
CORPORAL ERSKINE
resumed:
MR. DONNELLY:
Q, Yesterday, before the Court arose, we were dealing with the marks west of the feet? A. Yes, sir. 30 Q, I show you again Exhfbit two, which shows those marks. (Produced) . A. Yes, sir. Q, You gave evidence on the preliminary hearing on the 13th of July, did you? A. I did, sir. Q. I would like to read question seventy-nine. You were telling us about some marks in the picture you have before you now:
" You saw some marks in the dirt. Describe those marks as best you can? 40 Answer: There was a mark below the deceased' s right foot, several marks, in fact a distance of seven or eight inches westerly of her right toes. "
I understood you yesterday to say six or seven inches. Would six or seven be right or seven or eight? CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
A. Six or seven inches. I thought I had answered six or seven inches, origin ally.
MR. HAYS:
Read eighty-one, also.
MR. DONNELLY:
Q. That was your first comment, was it not, seven or eight inches? A. If that is what I said, I meant to say six or seven.
" Q. 81: You were describing a mark near'the right foot was it?
Answer: The right foot. There were several marks in this area, six or seven inches from the right toes, which measured approximately ten inches - pardon me - eleven inches in length. "
30 A. That is what I meant to say. Q. That is what you meant to say. Six to seven inches. Then, if I may refer you to question number ninety on page nineteen, and this is dealing with the mark below, to the west of the right foot:
" Q. 90: Was there any imprint in it that you could find?
Answer: There was an imprint in it 40 which appeared to be a heel, but I cannot properly say. "
A. That is correct, sir. Q. You made that answer to that question? A. I believe that was my answer, sir. Q. And that is correct, is it not? A. That is correct, sir. 101
CPL. J. W. ERSKINE (For Complainant at trial) Cross-exam.
Q. . It may have been a heel mark and it might have been something else? A. That is correct, sir. Q. Yes. Then, if I may refer to question one hundred and eleven on page twenty-one, and we are dealing with the mark at this time, to the west of the left foot:
II And was this mark similar to the other mark?
Answer: It was very badly broken down, and I was unable to tell if it was similar to the other one. "
Were you asked that question and did you make that answer? A. I believe that was the question and I believe that was my answer to it. Q. And that is true, is it? A. That is correct, sir. Q. You were unable to say whether one mark was similar to the other, even? A. That is correct, sir. Q. They were quite indistinct, I take it? A. That is correct, sir. Q. Dealing still with the marks west of the left foot, at 115:
" 4.115: Now were you able to find any- 30 thing in the mark by the left foot from which you could identify any object?
Answer:No sir. "
Were you asked that question and did you make that answer? A, That is correct, sir. Q. And you were not able to identify any object from the mark to the west of the left foot. That is true, 40 is it? A. No, I wasn't sir.
HIS LORDSHIP:
That is question what?
MR. DONNELLY: c, m tn pa C k l -rl a, Okk z $-:g C s n 0- 4JUG c, U -4 fd .. I <:ha C c, e 5 mkoa a, fd - rl E 7 a, u a, g; c, -A 5: UX X 5 % gm-rtfd -4 C E 4J.4.r a, M -d fi t2 +I P, fd PI 9 ,G"-rl ro E 0 o vm5 z 5 k h .4 ,G rd id -lJ a( 3 E-l hZ E 0 = 5 G -d 5 C fd -4 6r fd3 0 kk -A WC k Oa, i,UC .rlka,H 5 Ol00 w rl 3 C fd fd- 5 s fdd Cc,C 6 Eg -4- 0 c "hk [I) a, cE 0 wok0 a,-4 nCgm G h 8 GS fddk c, b E id a, fd 37 ro 3u E a* -4 tD C 4JOm a, 4J-rlan P4 4J a a a, Sm mum 3 m S H 0 cn OC 3 a, b' ,GW4JH Z-4 ~HHE C, rd c, n fda, 5 .. m wZ&: PI; 4J I3 a. k C -02 0 +,id 2 lo 4 rl rl m 5 0 m -[I) W a,-rl e'tl rc'* H WQ) 6 0; 2 %ma am U m - id W a, QC 7.d 4 c, 0 5 - rl 31 Q) 3 a, "5, k .rl 4-r g; 0 5 CPL, J. W. ERSKINE (For Complainant at trial) Cross-exam.
A. Yes, sir. Q. And then one hundred and eighteen:
" Q. 118: And were they sufficiently distinct that you could get an impression as to whether they were made by rubber- soled shoe or soft-soled shoe?
Answer: No, sir, I wouldn't be able to say. "
Were you asked that question and did you make that answer? A. I believe that is correct, sir. Q. And that is still correct, isn't it, that the marks were so indistinct you were unable to say whether they were made by a hard-soled shoe or a rubber-soled shoe? A, That is my feeling, sir, yes. Q. 'Yes. Now, would you take a look at Bxhibit number two. We have been describing or speaking of the two marks in this Exhibit. That is right, is it? A, That is correct, sir. Q. Were you able to find any other mark in the area where the body was? A. No, sir. Q. And were you able to find any other mark within fifty feet of the body, except these two marks? A. Just 30 these two marks, sir, Q, Just these two marks. Is it safe to say, then, that as a result of your numerous visits to the bush, com- mencing on the afternoon of June the llth, and your intensive study of the area during that day and the succeeding days, these were the only two marks you were able to find in the bush? A. These were the only two marks I was able to find in the bush,
MR. DONNELLY:
Thank you. You will have this in your Jury room, Thank sir.
HIS LORDSHIP: CPL. J. W. ERSKINE or Complainant at trial) Re-exam.
RE-EXAMINATION BY MR. HAYS :
Q, Under questioning by my learned friend you gave the length of the girl's legs thirty-one to thirty- three inches.
HIS LORDSHIP:
He gave that to you in the first place.
MR. HAYS:
No, My Lord.
HIS LORDSHIP:
I certainly thought he did. I may be wrong about that.
MR. HAYS:
He gave me the length from a stake to the toes.
MR. DONNELLY:
I understood he measured the body.
HIS LORDSHIP:
Q, You did say that, didn't you, Officer? A. No, sir. Q, You gave us thirty-three and thirty-one first, didn't you? If that is what you are referring to. You are referring to something else now, are you,: because this witness certainly gave us the length from the crotch. Do you remember 40 him talking about that?
MR. HAYS:
The measurement from the stake at the crotch to a stake at the toes. I don't call that giving the length of the girl's legs. 105
CPL. J. W. ERSKINE o or Compaainant at trial) Re-exam.
HIS LORDSHIP:
You just ask the question, then. He certainly gave us those measurements originally, although Mr. Donnelly cross-examined on them.
MR, HAYS:
Yes, My Lord, but it is arising out of an answer to my learned friend.
HIS LORDSHIP:
I understand that. That is the purpose of your re- examination.
MR. HAYS:
Yes, My Lord. May I be permitted?
HIS LORDSHIP:
Go on.
MR. HAYS:
30 Q. Now, have you anything to indicate the length of the girl's legs in a standing position, similar to what you took from the accused? A. No, sir. Q. In what angle were the girl's toes when you put the stake in, with relation to feet, or the earth? A. At the same angle that they are in that photo, sir. Q, And your stakes were at her toes? A. At the toes, sir.
HIS LORDSHIP:
That is all, Officer.
THE WITNESS:
Thank you, My Lord.
--- The witness retired, Argument
MR, HAYS :
My Lord, before calling my next witness, I would ask leave to call five or more expert witnesses under the Evidence Act,
MR, DONNELLY 2
I am afraid my friend is too late. He should have asked that leave before opening the evidence, My Lord.
HIS LORDSHIP:
Yes, you are too late to ask leave now.
MR, HAYS:
Would the Court hear me on that point?
HIS LORDSHIP:
Gentlemen, retire, please.
--- Jury retired.
IN THE ABSENCE OF THE JURY
MR, HAYS:
My Lord, it is my submission that the section covers instances where either side call a person with 40 special qualifications to give opinion evidence. In calling Corporal Erskine, I asked him concerning his taking of photo- graphs, concerning a button, concerning the length of the accused's legs, and the nearest it could come to an opinion is when he produced ,. ,
HIS LORDSHIP: 107
Argument
That is not the point. The purpose of your re- quest does not matter whether Corporal Erskine was an expert or not, for the purpose of your request, is it? It may matter when you come to count, but for the purpose of your request, it doesn't matter.
MR, DONNELLY:
If I may interrupt, My Lord, it may be,
" Such leave shall be applied for before the examination of any experts who may be examined without such leave, "
HIS LORDSHIP:
What section is that you are reading?
MR. DONNELLY:
Section seven of the Canada Evidence Act, sub-section two, My Lord,
HIS LORDSHIP:
You are overlooking the fact that it has been 30 changed by the new Code. All right, Mr. Hays.
MR. HAYS :
It is my respectful submission, My Lord, that I did not ask this witness an opinion arising out of any special qualifications that he would have. Photography, no. Length of legs, no. The closest he would come was when he produced bicycle marks and I asked him if he could compare this with any actual tires. I feel, in making the answer, 40 that he did and that they were similar, that he wasn't expressing an opinion as an expert, but that was a deduc- tion which a Jury or anyone else with the objects before them, could give. The section perceives the asking of an opinion and that this witness was not so asked by me. Whatever his qualifications, that I did not take opinion evidence from him. Apropos, of that, My Lord, I read from the Canadian Criminal Evidence, Popple, page 538, on this 108
Argument
question of dealing with expert evidence. Referring to the case of Rex versus Kierstead, 1918, 30. C.C.C., 175:
" It was considered that the mere fact that a witness is a medical man does not necessarily qualify him to give evidence as an expert on the question of sanity, and it should be proved that he has special experience in such matters. "
Now, I feel I did not prove or seek to prove his being a specialist in looking at physical marks and looking at the pictures and saying they are similar,
Then, My Lord, there is the case of Rex versus Preeper, 15 Supreme Court Reports, 401, I have the report, but the reference to it at the same page page I have quoted:
" The question of the competency of a witness to answer a question in- volving an expression of opinion is a preliminary question for the trial judge. "
30 And in that case, reading from the judgment of Mr. Justice Strong, here a doctor had been called on the murder case to testify concerning firearms and so on.
" The admissibility of the witness as an expert, competent to state an opinion on the point in question, was of course, entirely a question for the Judge, and it was for him to say in the first instance whether Doctor McKay's testimony on this head came within the required condition, But this ruling of the learned judge, though on a question of fact, is open to review on appeal. "
And I feel that until Your Lordship would have ruled that this man was an expert on whatever he was being asked to give the opinion on, that he would not be so Argument qualified under the section.
HIS LORDSHIP :
I can rule that now. I don't have to rule that during the course of his evidence. You certainly asked him some opinion evidence. You asked him for his opinion. I think I stopped him from answering one question on the ground that he hadn' t qualified himself as an expert.
MR. HAYS:
That is a.preliminary question.
HIS LORDSHIP:
It may be on these motions, but there is no require- ment that his evidence be ruled upon during the course ~f it. NOW, of course, it becomes important to know whether he was an expert or whether he was not.
MR. HAYS:
Then, that same Rex and Preeper case .. .
HIS LORDSHIP:
What is the name of it?
MR, HAYS: .;
Preeper, 15 Supreme Court Reports, 401. Strong, J., page 409:
" There can be no doubt as to the rule established in practice by the un- contravertable author ity, that no evidence of matters of opinion is admissible except where the subject is one involving questions of parti- cular science in which persons of ordinary experience are unable to draw conclusions from the facts. The Jury must, as a general rule, draw all Argument
" inferences themselves, and witnesses must speak only as to facts. "
NOW, it is my respectful submission, My Lord, that with the pictures of the tire marks, both, and the wheels, that the Jury are able to make comparisons and that 10 comparison made by the witness was not through any expert knowledge beyond that which a Jury would have, and that the whole section is based -- you could call anyone. This may seem facetiously obvious. You could call an expert in any field and question him on things and ask- his opinion and take his opinion on matters which the Jury can form their own opinion of without that assistance, and you are not then contravening the -- you are not calling him as an expert within the meaning of the section. There are a number of cases, My Lord, where Constables -- there is Rex and Germain, 20 and that is where Policemen give evidence that a man is in- toxicated instead of answering just the trade questions of his condition. They make the statement and give the opinion that he is intoxicated. And they are held not to be -- Regina and Marks, 1952, O.W.N. 606, is in point. I am reading from the learned Trial Judge at 611:
" In my opinion, it is for the Judge to decide whether in the light of certain facts under this section the officer 30 in questio-n is competent to give an opinion as to any condition of impair- ment and as a result of consumption of alcohol. In the light of the evidence in this case, I don't think that the officers were competent to give such opinion since not only did they not observe the accused actually driving his car, " 40 and so on. t There are other cases where they deal with that particular subject. They are not experts in that field. They are merely commenting on something that is open to the average layman. While my learned friend may have .. .
HIS LORDSHIP: Argument
That case does not decide what you are arguing at all. It decides whether he is an expert or not. It is his competency.
MRo HAYS
10 Yes, My Lord, but I interpret the section, with respect, you can 'call a highly competent man ...
HIS LORDSHIP:
Certainly you can. You can call a medical man and they don't give expert testimony.
MR. HAYS:
Yes, he can give an opinion, but if it is an opinion in a manner in which the Jury can form their own opinion on, then he doesn' t become one of the number under the section.
HIS LORDSHIP:
I don't know that that is the test.
MR. HAYS :
And the type of evidence he gives seems to be -- I quote from the case of Rex versus Barrs, found in 86 Canadian Criminal cases at page 9, and reading from the judgment at page 17 of Chief Justice Harvey. This is an Alberta Court of Appeal: 1t
" Corporal Petely Jones of the R.C.MoP. was qualified as an expert, having been engaged for eight years in the I 40 Crime Detection Laboratory of the R. C.M. P. in Regina in photographic and print work, he, by means of photo- h graph under infra-red light and using infra-red film, was able to say that the typewritten obliterated address f on the envelope containing some bonds I taken by the appellant to the bank was I
I Argument
'Mrs. Lawrence-B. Barrs, Bowness, Alberta' . It may be said that this was of little, if any, importance, because in a statement made by the appellant to the police, which was put in evidence with the consent of his counsel, the same opinion had been given. "
Then they go on to say:
" No such claim can be made in respect to another witness who gave expert testimony. "
So that what the witness says, My Lord, is what I seek to extract from that case. No matter what his qualifications are, if you don't take an opinion based on those qualifica- tions, he does not become an expert witness within the meaning of this section.
HIS LORDSHIP:
Mr. Donnelly?
MR, DONNELLY:
My Lord, my friend opened by qualifying the wit- ness as an expert in identification. He was in charge of identification in this district. He has six and a half years' experience and special training in photography and special training ...
HIS LORDSHIP:
In identification. 40 MR, DONNELLY: t In identification, Then my friend said the Jury can compare the bicycle. This man uses some special tests which his training no doubt taught him to use. And did he make some tests, and he said: "Yes". And he said: "What is your opinion?" and he said: "The bicycle marks in my Argument
"tests are similar to the ones in the photograph." Now, my friend says the Jury can come to the same conclusion. The Jury has not the sheets this man used to make the tests. My friend didn ' t see fit to produce them. Probably they wouldn't be admissible. But my friend left it to the Jury to rely on the expert opinion of this witness, Corporal 10 Erskine, an expert in identification. My friend certainly asked him his opinion. Now my friend said it is a preli- minary question for the Judge as to whether he is entitled to give an opinion or not, and that is quite true, and Your Lordship so ruled. This man was asked his opinion how long it would take the soil to dry out. You said the witness is not qualified to do that, but the fact that Your Lordship didn't rule directly that he was not qualified, the fact that you didn't stop the witness giving the opinion is a very clear indication that Your Lordship considered that he was 20 qualified to give that opinion.
And that would be a ruling because, as Your Lord- ship well knows, Your Lordship is in charge of the conduct of the trial and if inadmissible evidence is tendered, it is Your Lordship's duty to exclude it. &
t Your Lordship, very properly, when I asked the witness about dry ground, you said the witness isn' t quali- fied on that subject, and very properly. When my friend f 30 asked about identification, that is the point upon which my friend qualified him, Your Lordship very properly allowed the question. So Your Lordship at that time did rule that he was an expert or my friend would not have been able to ask him his opinion.
HIS LORDSHIP:
! I don't know whether that is quite right, because I I didn't rule one way or the other. I don't think you can 40 assume. It may have been quite inadmissible evidence. t MR. DONNELLY:
I am saying Your Lordship wouldn't have permitted I the question if you didn't consider him an expert.
HIS LORDSHIP: 1 Argument
Perhaps if you, as Defence Counsel, had raised some objection, I might have ruled it out, but you were quite content to hear it.
MR. DONNELLY:
I was quite satisfied that he is an expert in identification, My Lord. And he certainly was asked his expert opinion on identification, his specialty. Identi- fication of the marks in these Exhibits twelve, thirteen and fourteen. My friend asked that and he is bound by it and he is too late in his present motion, I submit, My Lord.
HIS LORDSHIP:
Anything you want to say in reply, Mr. Hays?
MR. HAYS:
I have only by way of repetition.
HIS LORDSHIP:
It is a fact that you asked him several times at the opening of his evidence about his special qualifica- tions, both as regards photography and as regards as to 30 identification. That he was specially trained and that was his special business.
MR. HAYS:
My recollection may be faulty.
HIS LORDSHIP:
You asked his opinion.
MR. HAYS:
As to whether he was the identification expert for the district.
HIS LORDSHIP: 115
Argument
I think you are too late, Mr. Hays. You will . have to rely on five experts. If that isn't enough to prove any case, I don't know what is. I am not going to give you leave to increase the number now, in view of the terms of the statute, in view of your examination of Corporal Erskine, 10 Call the Jury back. --- Jury returned,
IN THE PRESENCE OF THE JURY
MR, HAYS:
The next witness, Helen Blair, My Lord.
DEPOSITION OF MISS HELEN DOREEN BLAIR
HELEN DOREEN BLAIR
sworn.
EXAM1 NATION-IN-CHIEF BY MR, HAYS: t Q. Miss Blair, you are, I believe, a teacher at the public school on the Married Quarters at the Air Force near Clinton? A, Yes, I am. rI Q. Were you the teacher of Grade Seven at which Lynne attended or another grade? A. I teach Grade Four ordinarily, but I do Grade Seven and Eight health and the MISS H. D. BLAIR (For Complainant at trial) In chief
ball team for the senior girls.
HIS LORDSHIP:
Q. I didn't hear what you said. You teach Grade Four? A. Yes, I have Grade Seven and Eight girls' health 10 and I had the ball team for the senior girls.
MR. HAYS:
Q. Following school on Tuesday, June 9th, last, Miss Blair, did you see the deceased, Lynne Harper? A. Yes. We had a ball game following school at the Sports Field and I drove her home from that ball game about 5:15 or 5:30, somewhere around there. Q. Had she been playing ball on the team? A. 20 Yes, she was a substitute on the team. Q. At what time did you drive her to her home? A. It would be some place between five-fifteen and five- thirty when I would let her off at her home. Q. Did you ever see her again after that? A. , NO, I didn't. Q. You were at the ball game as coach or something of that nature? A. Yes, I was. ! Q. Did she have anything to eat that you know of? A. Not that I know of, although some of the girls were 30 drinking water and soft drinks because it was very hot, but 1 I couldn't say she had something specifically. be Q. Did she seem -- what would your comments ! as to her health and spirits at the time you left her off, as far as you were concerned? A. She seemed in very t good spirits and quite pleased with the ball game and things 1 I in general, as far as I could see.
CROSS -EXAMI NATION BY MR. DONNELLY:
Q. Miss Blair, there was a ball game that after- noon? A. Yes. k Q. And this was played at the Sports Park which is west of Number Four Highway, directly across from the Station? A. That is right, yes. 1 Q. And there are a number of ball diamonds there,
are there not? A. Yes, there is. 1 MISS H. D. BLAIR (For Complainant at trial) Cross-exam.
Q. And there was a ball game going on at an adjacent diamond between some boys of similar ages? A. Yes. Q. You saw that? A. Yes. Q. Have your girls played on that diamond on occasions? A. Do they? Q. Yes? A. Not when I was with them, no. Q. You were familiar with the diamond on which the boys had played? A. I had never been to that end of the Sports Field but know approximately where it is. Q. There is considerable grass on all the out- fields of those ball diamonds, is there not? A. Yes. Q. They are well grassed? A. Yes, I would say so.
MR. DONNELLY:
Thank you very much.
\ HIS LORDSHIP:
That is all.
--- The witness retired. DAME S. HARPER (For. Complainant at trial) In chief
MR. HAYS:
Shirley Harper.
HIS LORDSHIP:
The adult witnesses ought not to leave the Court- room after they have been examined.
I notice that this last witness, Helen Blair, has left the Courtroom and also Corporal Erskine. NOW, there is a long list of witnesses here. It will be impossible to keep them all here in this Courtroom after they testify. I want that Miss Blair brought back here so she will understand when she leaves the Courtroom she is not to communicate with any of the witnesses who have not as yet been called. Will you see she is brought back, Mr. Hays?
MR. HAYS:
Yes, My Lord.
HIS LORDSHIP:
All right, proceed.
DEPOSITION OF DAME SHIRLEY HARPER
SHIRLEY HARPER
sworn.
MR. HAYS: i
40 My Lord, it was just brought to my attention that Miss Blair, being a school teacher, is absent from her school. t Would the Court give permission for her to depart? HIS LORDSHIP: 1 Oh yes, certainly. We have to be practical about i these things. They are supposed to remain in the Courtroom I DAME S. HARPER (For Complainant at trial) In chief
after they testify, but you can't have people remain in the Courtroom an unlimited length of time.
Will you come forward, Miss Blair, for a moment, please. You are being permitted to depart from this Court- room. I understand you are a school teacher and are going 10 back to your work. You must understand you are not to communicate or talk about this case or talk about your evidence to anyone who is going to be called here as a wit- ness. Do you understand that?
MISS BLAIR:
Yes, I do.
HIS LORDSHIP:
As long as this trial is proceeding. That is all.
Yes, Mr. Hays , please.
EXAMINATION-IN-CHIEF BY MR. HAYS:
Q. Are you the mother of the deceased girl, Lynne Harper, Mrs. Harper? A. Yes, sir. 30 Q. How old was Lynne, Mrs. Harper? A, Twelve years and nine months. Q. And you and your husband reside on the Married Quarters east of the Radio School, the RoCeAeF* Radio School? A. Yes, 15 Victoria Boulevard. Q. Your husband is a flying officer on staff I there? A. Yes, sir.
HIS LORDSHIP: 1 I 40 Not too fast, Mr. Hays, please.
Q. Mrs. Harper, can you give us the exact age of your daughter's birth? A. August 31st, 1946. Q. August 31st, 1946. So she was almost thirteen years of age? A, Yes, sir. C
HIS LORDSHIP: DAME S. HARPER (For Complainant at trial) In chief
All right.
MR. HAYS:
Q. And Lynne attended Grade Seven at the public school? A. Yes, sir. 10 Q. Had you ever known your daughter to hitch- hike on any of the roads? A. Not to my knowledge, sir. Q. Were you home, Mrs. Harper, at the supper hour? On Tuesday, June 9th, last? A. Yes, sir. Q. What time did Lynne come home? A. At five thirty. We have a clock in the kitchen and I glanced at it when she came in.
HIS LORDSHIP:
Q. Five-thirty? A. Yes, sir. Q. This is on June the 9th, is it? A. Yes.
MR. HAYS:
Q. And by what means did she arrive? A. She came home in a car. I happened to be up looking out the window at the time she came home, and when she came in I asked her who brought her home and she said: "Miss Blair".
HIS LORDSHIP:
Now, just guard against that, Mr. Hays, please.
MR. HAYS: I t I will try to, My Lord.
Q. And after she came in, what did she do? A. She immediately started her supper. We had already started 1 40 ours, Q. What time did she finish her supper, Mrs. Harper? A. At approximately a quarter to six. Q. What leeway would there be with respect to a quarter to six? A. Not more than a minute or two. Q. What did she have to eat for supper? A. She had boiled potatoes, canned peas, dressing, turkey, which her father served to her, and celery and pickles and cranberry DAME S. HARPER o or Complainant at trial) In chief
sauce on the table.
HIS LORDSHIP:
Q. She had boiled potatoes, canned peas, turkey? A. Yes. Q. What else? A. Dressing, cranberry sauce and pickles and celery were on the table.
MR. HAYS:
Q, In what room did she eat? A, She ate in the kitchen . Q. Were you in the kitchen at all times while she was eating? A. NO, after we got through our main meal we took our tea in the living room and left her eating her dinner. 20 Q. That is, you and your husband? A. My husband and I, yes. Q. Was there any other meat available to her in the kitchen? A. There was bologna and ham in the ice box. Q. Following her completion of the meal at a quarter to six, what did she next do, Mrs. Harper? A. She had wanted to go swimming and I sent her down to see Mayor Johnson about swimming passes. He lives on the station. Q. Did she return? A. She came back about five to six and said: "Unless .,.
MR. HAYS:
Q, NO, no. Nothing she said. She came back at five to six? A. Yes. Q, What did she do after that? A, She went upstairs to the bathroom and I called her down to wash the supper dishes. Q. Yes, and next, Mrs. Harper? A. I went out in the back yard and sat with a neighbour. 40 HIS LORDSHIP:
Q. I don' t hear what you say? A. I went out in the back yard and sat with a neighbour while Lynne was doing the dishes.
MR. HAYS: I DAME S. HARPER (For Complainant at trial) In chief
Q. What next did you see of Lynne? A. After she was through, she came by where I was sitting and stopped and fondled the next door neighbour's baby, and went off on foot, down Winnipeg Road. Q. With respect' to the Public School, Mrs. Harper, how would the direction in which she went compare to 10 the direction from your home to the Public School? A. It would be toward the school.
HIS LORDSHIP:
Q. Towards the school. Which way is the school from your residence? East, west, north or south? A. Oh! dear: That is a good question. About approximately two city blocks. Q. I want to know the direction? A. I think 20 our house would face north. The school would be north-west of our house. Q. North-west from -your house? A. I think so, sir. Q. Do you know which way Winnipeg Road runs? East and west or north and south? A. Well, there is a slight curve but it is actually a continuation of Victoria Boulevard.
Qo Yes. What way does it run? A, I am not very good on directions. 30 MR. HAYS:
May I, with the Court's permission, show the witness Exhibit eleven?
HIS LORDSHIP:
Show it to her.
40 MR. HAYS:
Q. Would you look at that picture which is an 1 aerial view --- that has been identified as an aerial view of the Married Quarters. Can you see the school .there, Mrs. Harper? A, Yes, sir.
Qm And can you see your home? A. Yes, sir.
Q. Would you point your home out to His Lordship? I DAME S. HARPER (For Camplainant at trial) ' In chief
HIS LORDSHIP:
Let her put a mark on it, please.
MR. HAYS:
Tick your home, Mrs. Harper. She might as well tick the school.
HIS LORDSHIP:
Not the same tick, please.
MR. HAYS:
The word "Sum
HIS LORDSHIP:
Yes, put an "S" on it.
THE WITNESS:
I just put an "X" on the house. Victoria Boulevard ends off there and this is Winnipeg Road, which is actually a continuation, r 30 HIS LORDSHIP:
I see, Now then, you show this to the Jury, please, and point it out to them.
MR. HAYS:
Gentlemen of the Jury, the witness has ticked her !I home and then you see the school with the "S" marked on it. 40 This is looking north.
HIS LORDSHIP:
Would you point out Winnipeg Road?
MR. HAYS: DAME S, HARPER (For Complainant at trial) In chief
Q. Would you point it out again? A. his is Victoria Boulevard, and from this corner on it is Winnipeg Road, It is actually a continuation.
MR, HAYS:
The witness points out Victoria Boulevard circling past their home and it continues around, counter-clockwise which is Winnipeg Road.
HIS LORDSHIP:
I wish you would write on that "Winnipeg Road".
MR, DONNELLY:
It might be helpful to the Jury, My Lord.
HIS LORDSHIP: rC
And helpful to me as well. That is ~xhibitwhat, Mr, Hays?
MR. HAYS:
This is Exhibit eleven, My Lord.
All right,
MR. HAYS:
Q. How was Lynne dressed when she left home, Mrs. Harper? A. She had on a pair of greenish blue shorts. a white blouse printed with red and blue. 40 HIS LORDSHIP:
Q. A white blouse? A, Yes, sir. Q, Trimmed with? A, Printed. It wasn't trimmed. Q, Printed with red and blue? A, Red and blue. Qo Yes? A, Brown loafers and I presume she had on socks, shirt and underwear and her pants. DAME S. HARPER (For Complainant at trial) In chief
MR. HAYS:
Q, Did Lynne possess an Air Force locket? A. Yes, sir, it had been sent to her about three weeks before she died, by my sister. Q. Do you know whether or not she was wearing it 10 that night? A. I don' t know for sure. She could have had it on.
MR. HAYS:
My Lord, I appreciate the scanty evidence in that respect. Would the Court feel that the locket might be produced for subsequent witness at this stage and being shown to the witness and ask how it compares with her locket?
MR. DONNELLY:
I have no objection, My Lord.
HIS LORDSHIP:
Ask her if that is her locket.
MR. HAYS:
Q. Can you say that that is her locket, Mrs. Harper? A. I couldn't say certainly. It looks like it. It was very similar.
HIS LORDSHIP:
That will be Exhibit twenty-three.
--- EXHIBIT "23": Locket referred to.
40 HIS LORDSHIP:
Q. Do you know whether that particular locket k that you just looked at now, where it comes from? Where does it come from? A. I don't know, sir.
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0 0 0 0 rl cv M d' DAME S. HARPER (For Complainant at trial) Cross-exam.
Q. NOW, your daughter was on the baseball team was she not? A, I am not sure, I know she attended the baseball game that afternoon. Q, I don't mean that she played that afternoon, but she was a substitute on the team, was she? A. I can't say, sir. 10 Q. Was your daughter interested in hockey? Did she play any hockey with the girls there? A, No, sir. She played volleybal1 and basketball, I know. Q, Did she do considerable swimming? A. Just in the summer time. She had not been swimming prior to her death this year. Q. Did she play volleyball and basketball last year? A. Yes, sir. Q. Have you ever played basketball? A. No, sir. Q. Is it a fact that she played guard on the 20 girls' basketball team? A. I don't know. Q. You don't know. But she was quite intevested and active in both volleyball and basketball? A. Yes, sir.
MR. DONNELLY:
Thank you very much, Mrs. Harper.
om- The witness retired. DR. J. L. PENISTAN (For Complainant at trial) In chief
MR. HAYS:
Doctor John Penistan.
DEPOSITION OF DOCTOR JOHN LLYWELLYN PENISTAN
DOCTOR JOHN LLYWELLYN PENISTAN
sworn:
EXAMINATION-IN-CHIEF BY MR. HAYS:
20 Q. Doctor Penistan, would you state your qualifica- tions? Are you a medical doctor? A. Yes, sir, I g::aduated from the University of London, England, in 1939, with the degree of Bachelor of Medicine and Bachelor of Surgery. After sub- sequent post-graduate training in the University Medical Schools, I obtained the higher diploma of Membership of the- Royal College of Physicians of London, which is a higher diploma in internal medicine and in a subsequent year, in 1943, I obtained an M.D. degree of the University of London, of which is, again, a higher diploma in the branch of Pathology. I have 30 studied Pathology and practised pathology since 1940, almost for twenty years. Q. For the benefit of the Jury, Doctor Penistan, would you explain Pathology? A. A pathologist is a medical doctor whose special province it is to study the changes that are brought about in the body as a result of disease, violence, . accidents and so on, and in particular of course, to determine causes of death. Q. Do you hold a Government appointment in this Province? A. Yes, sir, I am a registered Medical Practi- 40 tioner in the Province of Ontario. I hold the specialist's certificate in Pathology of the Royal College of Physicians and Surgeons of Canada. I am the Pathologist in charge of the t laboratories at Stratford General Hospital for just over ten years, and for approximately the same period I have held the appointment of Pathologist of the Department of the Attorney. General of this Province. 130
DR. J. L. PENISTAN (For Complainant at trial) In chief
HIS LORDSHIP:
For this district? A. This district, My Lord.
MR. HAYS:
10 Qe Does your work involve the performance of post- mortem examinations on bodies? A, Yes, sir, I carry autop- sies examinations for the coroners in the County of Perth and Huron and sometimes Oxford and frequently Bruce County and occasionally Grey. Q. Doctor Penistan, did you attend at the scene of a wood lot on Lot 35, Concession two, Tuckersmith Town- ship, a mile and a quarter east of the Town of Clinton and some distance south along the Township Road there, on the 11th of June, last? A. I did, sir. 20 Q. At what hour did you arrive? A. I arrived at the wood lot at approximately a quarter before five in the afternoon. Q. And on arrival what did you find, Doctor Penistan? A. I was conducted into the wood lot by Flight b Lieutenant Brooks, a Medical Officer of the R,C.A.F. Station
at Clinton, who took me to the body of a girl lying dead in I the bush. Q. Was the girl identified to you at that time? A, Identified to me by Doctor Brooks in the presence of the f 30 coroner, Doctor Thompson, as the body of Lynne Harper. Q. What did you observe at the scene, Doctor? A. The body, sir, was lying on its back in a slight de- pression, The ground is a little lower there than elsewhere. The right leg was slightly turned out and flexed and bent at the knee. The left leg was stretched straight down from the body. The left arm was lying with the hand and forearm across the abdomen. The right arm was stretched out to the
bended right angle at the elbow so that the hand was lying up I beside the right side of the head. The body was clad only in 40 an undervest which was pulled well up onto the chest. There was also a blouse from which the left arm had been removed, The right arm was still in the armhole. The blouse had 1 been tied -- had been wound around the neck tightly and had been secured by a knot under the jaw on the left side. The vest was heavily blood-stained, wet with blood in the region f of the left shoulder and lying immediately beneath that shoulder there was a pool of still fluid blood lying on the vegetation underneath. The amount, it was approximately as DR. J. L. PENISTAN (For Complainant at trial) In chief
much as could be held by a dessert or perhaps a tablespoon.
HIS LORDSHIP:
Q. This is the pool? A. The pool of blood, sir, on the vegetation. 10 Q. As much as could be held in a tablespoon? A. A dessert or tablespoon. I would estimate it, My Lord, at about an ounce.
MR. HAYS:
Q. Did you take a sample of that blood, Doctor Penistan? A. Idid. Q, I produce to you ...
HIS LORDSHIP:
Q. Just before you get into that. What did you say about the condition of this pool? A. It was still fluid blood, My Lord. Q. Still fluid? A, Still fluid.
HIS LORDSHIP :
Go on.
THE WITNESS:
My Lord, should I say anything about what happens to blood on a post-mortem?
HIS LORDSHIP :
If Mr. Hays wants to ask you about it. I 40 MR. HAYS:
Proceed, Doctor. A, What I wanted to explain, t sir, to the Jury, was that the fact that blood is fluid doesn't necessarily mean that it is very recently shed. I Blood, when shed, clots, but again, in the course of time, i may liquify. I don't wish to leave a false impression in the minds of the Jury on that particular point. DR. J. L. PENISTAN (For Complainant at trial) In chief
HIS LORDSHIP:
Q. All I was interested in was to get clear what you said, that it was fluid? A. Yes, My Lord.
MR. HAYS:
Q. Did you take a sample of the blood from that area, Doctor Penistan? A. I did, sir. Q. Can you identify the container that I hand you? A. Yes, sir. This container supplied by myself, and which in my own handwriting is described: "Blood from ground Harper". It contains a bottle from the Stratford General Hospital, similarly identified in my handwriting, and an additional mark on it, 8/41! 59, in red pencil, which is not mine. And
attached to outside of container is a seal number AG 2282- 20 which is, again, a seal supplied by myself and signed by my- self. Q. What disposition did you make of that? A. I gave this blood to a member of the Ontario Provincial Police. I think Corporal Sayeau, who was present in the wood lot at the time. Q. What other officers do you recall were present in the wood lot? A. Corporal Erskine was there, sir, and I think Sergeant Anderson.
MR. HAYS:
The next Exhibit number.
HIS LORDSHIP:
Twenty-four.
--- EXHIBIT " 24" : Blood container referred to.
MR. HAYS:
I believe you made some reference there to some dandelion leaves? A, I don't believe I have done so yet.
HIS LORDSHIP: I
I don't think so, either.
, DR. J. Lo PENISTAN (For Complainant at trial) In chief
HIS LORDSHIP:
Qo What are these leaves and twigs covered with now? A. In transparent plastic sealed with Scotch tape and a numbered seal of the Department of Justice, I believe. There is also a label reading: "Exhibit fourteen, pack of dandelion leaves". Q. The point is, did you put them in that con- tainer? A. No, My Lord, I handed them to Corporal Sayeau, who would have placed them in the container in my presence.
Qo Did he put them in the container? A. Yes, My Lord.
HIS LORDSHIP:
Then we will mark it Exhibit twenty-five.
--- EXHIBIT "25": Packette of leaves and twig referred to.
MR, HAYS:
Q. Will you continue with your observations at the scene, Doctor? A. Yes, sir. I did not make any search of the surrounding areas, which was the province of the Police, but I did observe below the feet that there were some marks in the soil in the ground running in an axis at right angles to the legs, some three to six inches distant from the feet and interpreted ...
HIS LORDSHIP:
Now don ' t please.
THE WITNESS:
I 1 will leave it there. +I'
MR, HAYS:
Qo What, if anything, did you observe about the marks? A, I observed, sir, that these marks were induced by heaping up of the soil which had been pushed DR. J. L. PENISTAN (For Complainant at trial) In chief backwards for a distance of two to three inches from a position closer to the body. They were -- these observa- tions, sir, are estimates and I did not measure them with a measure. They were in depth, in the region of half an inch, perhaps in some places an inch high, and in length, that is to say right angles to the long axis of the body, I would think eleven to twelve inches. The left one, to the left of her body, as I recollect it, was rather shorter than the one to the right of the body. The one to the left of the body was nearer to the heel than the one to the right of the body, since the right leg was slightly drawn up, as I have already described. They were both approximately in my view, the same distance from the fork of the body. Q. Could you give any opinion, Doctor, from what you observed there, as to the cause of those marks?
MR. DONNELLY:
The. doctor may be a specialist in some lines, but he has not been qualified as to marks in the earth as yet, I My Lord, L. MR. HAYS : I He would be qualified with respect to the human body, My Lord, and be able to express any opinions relative r to human bodies, i HIS LORDSHI P: I I think that is a question that the Jury must answer for themselves, from all the circumstances. There 1i are certain questions you might ask this witness that I could think of, but I don ' t think you can ask him that one in that way, at least. You may be able to frame a question i I that he may be able to answer, but I don't think he can properly answer that one the way you put it.
MR. HAYS: I
Q. Were you in the Courtroom while Corporal Erskine testified? A. Yes, sir. I Q. From the testimony he gave respecting the leg lem~and height, etc. , of the accused, can you give 1 DR. J. L, PENISTAN (For Complainant at trial) In chief
any opinion with respect to those marks and your examination of the body of the girl?
HIS LORDSHIP:
I think you ought to ask the doctor specifically what you want his opinion in respect to and not put a general vague question of that sort,
MR. HAYS:
Q. On the marks as you observed them there, can you form any opinion of those marks with respect to that height, leg length of the accused, and the size, length of the girl, as to the probable cause of those marks?
MR. DONNELLY:
I don't think that is -- that is a question for the Jury, My Lord, the way it is framed.
HIS LORDSHIP :
I don't know how anyone can answer that question, because I don't know exactly what you are after.
MR. HAYS:
Q, Would the marks be consistent or inconsistent, in your opinion, Doctor, with an act of intercourse between a person of the measurements given by Corporal Erskine with respect to the accused and this girl?
HIS LO~DSHIP:
That is certainly one I would rule out. That is 40 going to be for the Jury to say. I want to help you as much as I can, Mr. Hays, but you can't ask this question. You might ask him a question, and I think Mr. Donnelly must agree with this, if, in his opinion, a mark could be caused by certain articles. I think you would be entitled to ask that ! question, perhaps. i DR. J. L. PENISTAN (For Complainant at trial) In chief
MR. DONNELLY:
Possibly, I don' t know whether that is within his province or not,
HIS LORDSHIP:
I don' t know that it is, any more than it is in the specialty of any one of these Jurymen. That is really what you want to ask him. I can't see that your qualifica- tions as a Pathologist qualifies you to answer that any more than any one of these Jurymen. They can answer it. I don' t think it is a question that could be put to you.
MR, HAYS:
20 Might I ask him whether Doctor Penistan, through professional training, has some special knowledge of that particular matter?
HIS LORDSHIP:
What matter?
MR. HAYS:
The relation of bodies in intercourse, and the actions of bodies in intercourse.
HIS LORDSHIP:
That has nothing to do with this question. That has nothing to do with the evidence so far.
MR. HAYS:
40 Q. What were your observations on the body, Doctor? Would you proceed with that, please? A, Yes, sir. After we had completed our examinations in the wood 1 lot, the body was removed to the establishment of Messrs, Ball and Mutch. 1 Q, That is in Clinton? A, In Clinton, where I I carried out an autopsy later that evening. The first thing ,, , 138
DR. J. L. PENISTAN (For Complainant at trial) In chief
HIS LORDSHIP:
That is the evening of Thursday? A. Thursday the 11th of June, My Lord. It began at a quarter after seven. Q. While you are at it, can you give us the precise hour at which the body was removed from the woods? A. I would think, My Lord, around about six o'clock, but I wasn't there, as I recollect, at that time. Q. What time did you leave? A. I left, I think, and this is a vague recollection, My Lord, about six o'clock. Q. And the body was still there when you left? A. The body was still there. As I recollect, the ambulance or hearse had arrived and the body was on its way in the hearse.
HIS LORDSHIP:
All right. Go on, please.
MR. HAYS:
Q. Before leaving, Doctor, were there any other observations of the body and that kind of thing in the bush before you left? A. Not relevant to the bush, sir. I think I can cover it all at the autopsy. 30 Q. Very well, go ahead, Doctor. A. The first observation I made at the autopsy was that there was a very large number of fly eggs and maggots measuring up to a quarter of an inch in length in the region of the nose, from which there had been little fluid exuding, coming out, and particularly in the region of the sexual parts. These maggots were preserved for further investigation by the Attorney General's Laboratory. The body bore a large number of marks of violence.
40 HIS LORDSHIP:
Q. It is quite open to you, Doctor, to give us the marks. A. Yes, My Lord, I understand. Q. You can give us marks and give your opinion of what you think caused them. I wish you wouldn't start off with the general proposition of a conclusion before you give us the facts, please. A. Yes, I understand. 139
DR. J. L. PENISTAN (For Complainant at trial) In chief
Q. Go on. A. The face was dusky in colour as far down as a level above the blouse, which was tightly wound around the neck. Beneath the blouse the skin was pale and white. Q. All right, go on. A. Behind the left shoulder there was a triangular laceration, a cut, and by 10 that I do not necessarily mean an injury made with a knife. A lacerati& penetrating through the skin into the deep tissues, and it was from this injury . ..
MR. HAYS :
My Lord, might I interrupt for a moment. I see the girl's mother is still in the Courtroom.
HIS LORDSHIP: 20 If she wants to stay, very well. I suggest she leave, myself. She may have heard it before. --- Woman leaves Courtroom.
MR. DONNELLY:
Possibly the Crown doesn't wish her any more and she can return home. 30 HIS LORDSHIP:
I thought possibly she had heard all this before.
MR. HAYS:
No, she hadn ' t My Lord.
I HIS LORDSHIP: 40 But it is better that she is out. All right, go on.
THE WITNESS:
The injury which I have just described on the back of the left shoulder was clearly that from which the blood DR. 3. L. PENISTAN (For Complainant at trial) In chief
had flowed and formed the pool on the ground and which had caused the stains on the left side of the vest.
MR. HAYS:
Q. Could you say, Doctor, whether or not that 10 injury had been caused before or after death? A. In my opinion, sir, this injury was clearly caused prior to death. Q. That one on the shoulder, with respect to which the Exhibit went in, number twenty-four? A. Yes, sir. Q. Go ahead, Doctor. A. On the left leg there was, in line, a series of scratches, which I say was a single scratch with interruptions reaching from the front of the thigh, a few inches above the knee cap.
HIS LORDSHIP:
I didn't hear? A. Reaching, sir, from the thigh a few inches above the knee cap, down along the front of the lower leg and on to the top of the foot. This scratch mark bore a little dried bloody exudate and was, in my view, caused prior to death. Over the back of the body, the trunk, particularly over the buttocks, down the back and outer sides of the legs, down the backs of both arms, in- cluding the backs of the hands, there were very many abra- 30 sions and six or eight lacerations of the skin, measuring about a quarter of an inch in diameter. Q. In width? A. They were rather circular, My Lord, and that is about the diameter of the lacerations. The abrasions were varying sizes, a quarter to half an inch in size. Some smaller and some a little larger. From none oE these abrasions, of these lacerations had any bleeding or oozing occurred, and certain of them were excised, were cut out and studied by myself at a later date and under the microscope, and again, the absence of hemorrhage, of 40 bleeding, was confirmed. In my view, therefore, these injuries were not caused before death. Q. Were not caused before death? A. That is correct, My Lord. Q. These abrasions on the back you are speaking of? A. Yes, My Lord.
MR. HAYS: DR. J. L. PENISTAN (For Complainant at trial) In chief
Q. Any observations of any place that you can give an opinion of what did cause them? A. Yes, beneath the body, as I already said, there was a considerable amount of vegetation including a large number of brittle, dead sticks, one of which you have in Exhibit twenty-three, I believe. Is it not? Twenty-five. It was broken up with jagged ends and it is my view that these injuries that I have just described, the abrasions and penetrating wounds. which I believe to have been caused during or after death, were brought about by violent compression of the body against the ground, against these twigs. I took the average sort of twig on the ground. They are all very much the same size, and found that in diameter it fitted quite precisely the stamp of the puncturing injuries on the back and on the right arm. I made an internal examination of the body. In the neck I found bleeding into the tissues around the larynx or voice box, and I found a fracture or break in a small bone called the cornu or a horn which springs up from the upper surface of the thyroid cartilage or Adam's apple. This small horn was broken at its base and at the side of the break there was a little bleeding into the adjacent tissues.
HIS LORDSHIP :
Q. Is this bone any part of the hyoid bone? A. No, My Lord, it is not the hyoid bone, it is the one adjacent to it. The hyoid bone was intact. Opening the trunk of the body I found that the fatty tissues which lie beneath the skin were beginning to show the changes of break- down, of putrefaction that occur in the course of time after death. A point which I have omitted to tell you, on the external examination, which ties in with this examination, was that rigor mortis, the stiffening that occurs in the body after death, was so slight as to be barely perceptible. There was a trace present. On examining the organs within the chest, I again found the changes that occur after death. They were quite definitely beginning. Q. You mean putrefaction? A. It wasn't as advanced as putrefaction. The medical term is autoclasis breaking down of tissues, the post-mortem changes. There was considerable quantity of free fluid within the sac that contains the lungs, again a change which occurs after death, particularly when the lungs have been, as I found these, to DR. J. L. PENISTAN (For Complainant at trial) In chief
be extremely congested. I carried out, at a later date, microscopic examinations of the lungs. These showed many points of bleeding into the air sacs and tremendous dis- tention to many of the air sacs with a breaking down of their walls. I will return to this point in a moment. I then examined the organs in the abdomen. The stomach was 10 distended by approximately one pint of a meal, in which I recognized peas, onions, a few pieces of meat, one bft I thought was ham, and another was white meat, either chicken, presumably, or turkey. This food had not been well chewed. Fragments of it were quite large, were not broken up but there was a background of softer, less discreet material which I felt probably was potato. This stomach content I placed in a glass jar which was sealed in my presence with one of my seals and given to Corporal Sayeau.
MR. HAYS:
Q. Can you identify the item I produced to you, Doctor? A, Yes, sir. The seal number is 2202, which is the number I have in my records of the seal which was used, and is, otherwise identical with the container and apparently the food which I found so. It is now, of course, frozen solid.
--- EXHIBIT "26": Jar of stomach contents.
MR. HAYS:
Q. This is presently in a box of ice, My Lord. I wonder after it is marked whether it should be returned there.
What disposition of Exhibit twenty-six did you make, Doctor Penistan? A. I gave it to Corporal Sayeau, Q. Yes, now Doctor, can you express -- have you 40 completed your observations on the stomach? A, Yes, on the stomach as opposed to the abdomen. On the stomach it- self, yes. I was going to add, sir, however, that very little of this meal had passed on through the duodenum into the small intestine.
HIS LORDSHIP: DR. J. L, PENISTAN (For Complainant at trial) In chief
I think this would be a good place to have a short recess. If you would step down.
THE WITNESS:
Yes, sir, --- Witness steps down,
--- Jury retired.
--- Accused retired.
--- Whereupon there was a short recess.
--.Upon resuming.
--.Accused returned,
--- Jury returned,
DEPOSITION OF DOCTOR JOHN LLYWELLYN PENISTAN (continued)
I DOCTOR PENISTAN 40 . resumed, k MR. HAYS:
Q. I believe, Doctor Penistan, you were describ-
ing the stomach and made some reference to the duodenum. I
would you take it fromi-there? A. Yes, sir. I was making !I DR. J. L. PENISTAN (For Complainant at trial) In chief
the point that very little of the stomach contents had passed through the duodenum, which is a short segment of the intestines, into the small intestine, where the diges- tion process continues. I believe you asked me if I had drawn any conclusion from the state of the food in the stomach? Q. Yes, that is my next question, Doctor. A. The stomach, under normal conditions, proceeds with the digestion of food and as it is digested the stomach empties through the duodenum into the small intestines. This process is normally completed within two hours. I have to bear in mind here that the food in the stomach, as I said, appeared toshave been very poorly chewed, appeared to have been bolted, and swallowed without proper chewing, which would tend to slow down the digestion and the emptying of the stomach. I think, therefore, that while -- if I found a normal meal, normally chewed, well-chewed meal in the stomach, digested to the slight extent this food was digested, I would conclude that it had not been there for more than an hour. I would, however, make some allowance for the fact of the poor chewing of the food and give as my opinion that the food had not been in the stomach for more than two hours . Q. Could it have been for a lesser time? A. It could certainly, sir have been for a lesser time. Q, To what? A. I would estimate between one and two hours. Q. You were in the Courtroom when Mrs. Harper testified this girl finished her meal at a quarter to six? A, I was, sir. Q. On that basis, sir, you would put her time of death at ... A, As prior to a quarter to eight. Q, As early as .. . A. Probably between seven and a quarter to eight. Q. Now, Doctor, did you arrive at a conclusion ! as to the cause of death? A. Sir, I haven't yet finished 40 my description of the post-mortem findings. Q. Would you go ahead in your own sequence? A, I continued examination of the organs in the abdomen and found them in a healthy condition with the exception of the external accessory reproductive organs. The uterus or womb, itself, was normal, and microscopic preparations showed that the lining of the womb had not yet developed into the type that one finds in the adult woman after puberty. DR. J. L. PENISTAN PE or Complainant at trial) In chief
The condition of the ovaries also suggested to me that menstruation had not yet begun, and again, I will go back for a second and enlarge my description of the body, that the girl was well built, of normal proportions, about sixty-three inches high and weighing about one hundred pounds. 10 HIS LORDSHIP:
Q. Just aminute. Slowdown. A. I beg your pardon. Q. You see, you haven't given us yet the pro- portions and weight of this girl and I want to get that exactly. A. I was about to do so, My Lord. The girl was sixty-three inches high. Five feet, three inches. I estimated her weight as one hundred pounds, which would be 20 normal for a well-built girl of that height, and about twelve or thirteen years old. She did, however, show the beginning of puberty, of adolescence in that the breasts were beginning to take on the form of the adult female breast and that hair was beginning to appear on the private parts, although it was not abundant. Reverting to the findings of the sexual parts, the uterus, the womb and the ovaries as I have said, were those of a pre-adolescent child. The principle part of the vagina, which is the entry to the womb from the outside, appeared normal but contained 30 some whitish thick fluid, of which I took a sample for further investigation. And this I will refer to again later on. The lower part of the vagina, the entry to the vagina and the inn'er. parts of the external organs, these parts which are visible without internal examination were tremendously swollen, very discoloured, boggy.
MR. DONNELLY:
Q. What was that? A. Boggy. Q. Boggy? A. And seething .. .
HIS LORDSHIP:
Q. And what? A. And seething with maggots. The whole area showed considerable changes of decomposition which obscured the anatomy, the structure, and I was not able to identify the hymen, the maidenhead, in order to DR. J. L. PENISTAN (For Complainant at trial) In chief
determine whether its absence was of recent origin or whether it had been destroyed on some other occasion. Some previous occasion. I can only say that the hymen was not intact. I must emphasize that the changes in this region were very severe and did completely obscure the normal anatomy. I think that the effect of the maggots had added 10 very considerably to that. On the external private parts, on the right hand side of what is to the anatomist known as labium majus, there was a superficial abrasion of the skin, just beside the entry into the vagina, measuring about one-&ird of an inch in diameter. There was no bleeding from this, It was too superficial for that. Nor was there any oozing or any scab upon it. I made microscopic and chemical investigations on the fluid I had removed from the upper part of the vagina. Under the microscope I saw the cells which normally line the vagina, the bacteria which normally 20 live in the vagina, and both of these showed degenerative changes which occur after death. They were not so well stained. They were not so clearly visible as their bacteria demonstrates. I could not find any bodies which I could identify with certainty as sperm, and sperm consists of the characteristic sex cells of the male of which are present in the seminal fluid. There were some still stained bodies with blurred outlines which could well have been degenerating sperm, but as I say, I could not identify them with certainty. Chemical examination of this fluid, however, showed the 30 presence of tremendous quantities of a ferment known as acid phosphatase or prostatic. Q. Tremendous quantities of what? A. Acid phosphatase. Q. I didn't hear the last word. A. Phosphatase, My Lord. This is a ferment which is derived from the prostate gland of the male, which is one of the accessory or additional or secondary sex glands and from which large amounts of the ferment are poured out into the seminal fluid during ejacula- tion, during the passage out of the body of the seminal 40 fluid. This ferment is not found except perhaps in the merest trace, naturally, anywhere in the body of the female. Its presence in large quantities in the male is confined to the prostate gland, and those of the semen to the seminal fluid. Its presence in very large quantities in the vagina of this girl, therefore, indicates the presence of semen, of seminal fluid in her vagina. DR. J. L. PENISTAN (For Complainant at trial) In chief
MR. HAYS:
Q. That is male sperm? A. That is derived, sir, solely from the male. The changes in the lower part of the vagina in the parts about the entry to the vagina and in the outside parts, all indicate a large degree of 10 violence,
HIS LORDSHIP:
Q. What indicates a large degree of violence? A. The changes, My Lord, in the lower vagina, the entry to the vagina and the adjacent external parts. Am I, sir, to express an opinion on how these injuries were caused?
MR. HAYS:
Q, I would ask you that, if you can? A, In my opinion ,, ..
MR. DONNELLY:
My Lord, I don't want to unnecessarily interrupt, but might I suggest that in view of the serious changes, post-mortem changes that this man found, that it would be extremely dangerous for him to express any opinion at this 30 time because he told us he found some very serious and extreme post-mortem changes in this area. He said that maggots had caused some of it, the changes in decomposition obscured the anatomy. Could not see any trace of the hymen. And when this doctor found that condition, I suggest that it would be extremely dangerous for him to express an opinion as to what had happened earlier.
HIS LORDSHIP:
40 You might demonstrate later on that it is of no particular weight, but f think the doctor, as a pathologist, !k is entitled to give his opinion as to what caused these changes.
MR, HAYS:
Could you . ..
' . ., , ., , . , . .&... .. _--.1---_, -.-- r---: -___--...- L_-'-- ._ ...--.--.- .. .-_ ..--. - -. -i.-.-.-----.- .-.--=-- DR. J. L. PENISTAN (For complainant at trial) In chief
HIS LORDSHIP:
I don't know that you are asking it in a very good way.
Q. I think you may proceed, Doctor, to give your 10 opinion of what could have caused these changes.
MR. HAYS: r
Q, What is your opinion, Doctor, of that? A. In my opinion, sir, these changes were brought about by the act of sexual intercourse with this girl. The main feature, of course, being the presence in the vagina of seminal fluid. The changes in the anatomy of the lower part of the vagina and the other structures were not those that occur normally after death. The evidence, the findings were strongly in- dicative of injury to those parts, which, as a result of that injury, had undergone infestation by maggots and post- mortem changes more rapidly than they would otherwise have done. Q. Concerning the injury in the outer labium, has that any significance to you? A. That might possibly have been produced by a blind, violent thrust of the male organ in thO direction of the entry to the vagina. Q. Could you give any opinion, Doctor, from your observations, as to the time intercourse was had with re- lation to death? A. Yes, sir. In my view, intercourse did not take place while the child was still living. I hesitate to say that it took place after death, because it is not fair to suggest that life passes into death in a flash. There is no dividing line. I think that it took place while the child was dying, when the heart had stopped or almost stopped beating. In that, my reasons for saying that is that while the injuries to the parts were quite severe, the bleeding from them was extremely small. I have not yet, sir, given you the cause of death. Q. No. A. Which I think I should now give to you. The changes in the tissues of the face, the congestion, the presence of a tight ligature about the neck. Q. Explain ligature? A. Any form of constrict- ing band, in this case a blouse, the presence of hemorrhages, of bleeding about the larynx, the voice box, the fracture of the cornu, of the thyroid, and changes both to the naked DR. J. L. PENISTAN (For Complainant at trial) In chief
eye and microscopically in the lungs, all those things leave me to conclude that the cause of death was strangula- tion by this ligature of the blouse. Q. What did you do with the ligature at the funeral home? A. I cut it off from the neck to the left side of the knot, and I gave it into the possession of 10 Corporal Moore, who was then present.
HIS LORDSHIP:
Corporal who? A, Moore.
MR, HAYS:
Q, That is at the funeral home? A. At the funeral home. 20 Q. Did thete appear to be any change in this ligature or blouse from the time you saw it out in the bush from the time it was in the funeral home? A. No, sir. Q. Can you identify the parcel and contents, Doctor? You might remove it from its container. A. Yes, sir. This appears to be identical with the garment that I removed from Lynne Harper.
HIS LORDSHIP:
30 Q. Is it the garment? A. Yes, sir. The knot has been untied. Q. The knot has been untied? A. Yes, sir. Q. By you? A. Not by me, My Lord. The knot was tied when I handed it to Corporal Moore.
MR. HAYS:
Q. There would seem to be a portion missing there of the whole garment there, Doctor Penistan. Have - 40 you any comments on that? A. No, sir. I did not observe any-missing portion as it was tied about the neck. It was severed by me, I think with scissors. It may have been a I knife, to one side of the knot, where it was very much folded up, rumpled up and it is quite possible in doing and indeed . ,. 150
DR. J. L. PENISTAN (For Complainant at trial) In chief
HIS LORDSHIP:
No.
MR. DONNELLY:
No.
HIS LORDSHIP:
Q. I don't want you to speculate on what someone might have done. A. No, My Lord. I just want to say in the complexity of the folding of the thing when I cut it. I might well have inadvertently excised a small piece as I cut through the blouse. Q. Of the blouse? A. Of the blouse. Q. Not of the knot? A. Not of the knot, My Lord.
--- EXHIBIT "27": Blouse referred to.
MR. HAYS:
Q. Did you remove any other garment, Doctor Penistan? A. I removed the vest prior to performing the autopsy. Q. I see. What did you dowith it? A. I gave that also to Corporal Moore.
HIS LORDSHIP:
Q. You haven't given us fully the cause of i I death. It was caused by the ligature.
MR., HAYS:
Could you enlarge on that, Doctor?
HIS LORDSHIP: a
Q. What is the pathological cause of the death? A. Strangulation, My Lord. Asphyxia due to strangulation. 1 Q. Asphyxia induced by strangulation? A. Yes, My Lord. I DR. J. L. PENISTAN (For Complainant at trial) In chief
MR. HAYS:
Q. And by this ligature? A. Yes. Q. Can you identify the garment I produce to you, Doctor Penistan? A. Yes, this is the vest in which the body was partly clad when I first saw it, and the vest which I removed. The left, I think, shoulder strap, one shoulder strap is cut through and the vest has been cut down one side. The right side. This I did prior to removing the vest. I beg your pardon, I am at fault. I cut it down the left side. I did mark part of it: "front', in ball-point ink, and those letters still remain.
--- EXHIBIT "28": Vest referred to.
MR. HAYS:
Q, Did you remove any blood from the body, aoctor? A. Yes, sir. Q. From what part? A. I removed blood from the heart. Q. Of the deceased? A. Of the deceased. Q. I produce to you a container. What did you do with it? A. I gave it (sic) Corporal Sayeau, and it was sealed in my presence with this seal number 2201, which was supplied by me. Q. In which the Exhibit I now produce appears? A. Which the Exhibit bears.
--- EXHIBIT "29": Container of blood from Lynne Harper.
MR. HAYS:
Q. Did you make any examination of the finger tips of the deceased? A. Yes, sir. The finger nails 40 were well kept, closely trimmed. I took scrapings from behind the finger-nails and these I placed in a vial and gave to Corporal Sayeau, who sealed it in my presence. 1 Q. Do you identify the vial I now hand you? A, Yes, sir, this bears seal number 2203, which is the seal number that was applied to this vial, and the vial 1 within the container is that produced. Q. Did you complete your observations of her I I
I DR. J. L. PENISTAN (For Complainant at trial) In chief
finger-nails? A. I made no further observations, sir. There were no positive findings.
--- EXHIBIT "30": Container of finger-nail scrapings.
10 Q. What type of material did you obtain from under the nails? A. Some very scanty material, dry, greyish colour , probably I would think ., .
MR, DONNELLY:
This has been analyzed, L do think.
HIS LORDSHIP:
Q. Did you analyse the material? A. No, My Lord, I was merely describing the material I removed from them. Q. Very scanty? A. Very scanty. May I say, similar to the material normally found beneath well-kept nails. Q. Under well-kept nails. That is what you said? A. Yes, My Lord.
MR. HAYS: 30 Qe Any evidence of blood from the nails? A. No, sir. Q. Apart from the stomach, these contents, Doctor, is there any other observations that would assist in determining the cause of death or the time of death? A. Yes, sir. I referred in my description of the body to the post-mortem changes which were beginning to occur in the fat underneath the skin and in the lungs and indeed, in most of the organs of the body. I refer also to the 1 40 fact that rigor mortis was still, although only just, demonstrable. Having regard to the environment and the atmospheric conditions about that time, which as I recol- 6 lect clearly the weather was hot and the environment was damp, conditions under which changes tend to take place rather more rapidly than usual, I felt that these --,the 1 state of the body suggested that death had occurred some two days previously.
I. '.+ n .--, "- ,* -.,.- * ---.^-.r;. .--- ,--- , .---- . i,--5-.7m--*v,?.u- -+--<-*.., a=---.* -n--..-.--*-. r-r-- .-.rr- Erinrr-;lb-----' --.------r--*r----r-p------, 153 I
DR. J. L, PENISTAN (For Complainant at trial) In chief
Q. I take it, Doctor, that is supplementary to your stomach observations? A. That is divorced from the observations on the stomach. Should I add it was my view that the changes were entirely compatible with the time of death as shows from the stomach contents and the other evidence? 10 HIS LORDSHIP:
Q. Did the contents of the stomach assist you in
determining the length of time between death and the time I you first saw her? Would the contents of the stomach assist you in that regard? A. My Lord, I was taking into con- sideration the fact that I had heard Mrs. Harper's evidence. This is maybe improper. I apologize. Q. Can you answer my question3 Would the con- tents of the stomach assist you in determining the length of time that elapsed between death and the moment you tirst saw her? A. ' NO, sir, not by themselves.
HIS LORDSHIP:
That is what I thought.
MR, HAYS:
30 Q, Was there anything, Doctor, that you saw at i the bush, the region where the body was, and your observa- tions of the body there, that would indicate to you the 1 ! place where death took place? A. It is my view that death took place where the body was found. i MR, HAYS:
My Lord, I believe I just have one further matter fI with this witness and it is one 1 feel, in propriety, 40 should be brought up in the absence of the jury.
HIS LORDSHIP: Would you retire, Gentlemen of the Jury, for a I moment, please. --- Jury retired, I 154
DR. J. Lo PENISTAN (For Complainant at trial) Argument
IN THE ABSENCE OF THE JURY
MR. HAYS:
Q. Was Corporal Erskine present in the autopsy room when you did this post-mortem? A, I do not recollect 10 his presence, sir, and I don't think he was.
HIS LORDSHIP:
Q. Corporal whom? I didn't get the name. A. Erskine. Q. Erskine? A. Yes.
MR. HAYS:
20 Were any pictures taken? A. I beg your pardon, sir. Yes. Corporal Erskine was present and he took p~ctures. Q. That is at the funeral home? A. NO, in the autopsy room. At the bush and in the autopsy room.
MR. HAYS:
My Lord, my purpose is this, that in connection with identification of the body, I frankly see a problem confronting me, and I would propose to produce a photograph. 30 I believe Your Lordship's ruling was if I could see relevancy and the need for a photograph that I could recall Corporal Erskine. That is broadly stating Your Lordship' s ruling, and I would like to produce to Doctor Penistan a picture and then call him to see if he could identify the body of the girl upon which he did the autopsy and then recall Corporal Erskine and then by a subsequent witness say who that is.
HIS LORDSHIP:
40 You get whatever you want to get out here, now, and I will tell you whether it is relevant. That is why we have the Jury out.
MR. HAYS:
Yes. DR. J, L, PENISTAN (For Complainant at trial) Argument
Q. Can you identify this picture, Doctor Peni- stan? A, Yes, that is the girl upon which I did an autopsy. Q, The one that you described? A, The one I have described,
HIS LORDSHIP:
You didn't ask the mother anything about the girl. You didn't even ask the mother if the girl had died or was buried.
MR, HAYS:
The father is coming up, My Lord.
MR, DONNELLY:
My Lord, may I comment on my friend's remarks. He said he would have difficulty identifying the body. Doctor Brooks said he knew the girl well in life and he identified this body to the witness. What further identification could my friend want? That is the evidence of Doctor Brooks,
HIS LORDSHIP:
30 Why don't you ask him who identified the girl to him?
MR, HAYS:
I did, and he said Doctor Brooks,
HIS LORDSHIP: 1
Get Doctor Brooks and find out if he knew the I 40 girl,
MR, HAYS:
If I call Doctor Brooks, does he become an expert witness, if I ask him one question? DR. J. L. PENISTAN (For Complainant at trial) Argument
MR. DONNELLY:
No, he certainly doesn't.
MR, HAYS:
10 I would think my friend might wish to ask him questions in other respects.
HIS LORDSHIP:
Perhaps he will. That won't affect you then.
MR. HAYS:
Does Your Lordship so instruct me?
HIS LORDSHIP:
No, I don't. Mr. Donnelly indicates now, for that simple purpose, he would not regard Doctor Brooks as an expert.
MR. DONNELLY:
I certainly wouldn't, just for that simple pur- 30 pose, My Lord. If my friend gets into something else, he may be an expert.
HIS LORDSHIP:
You might call anybody to identify her. That wouldn't make him an expert.
MR. HAYS:
40 I just thought on cross-examination it may change his status. t HIS LORDSHIP:
I can't direct the trial ahead of time, and I don't want to make any ruling on the evidence until I hear it or until it is presented, but I can't possibly see how 157
DR. J. L. PENISTAN (For Complainant at trial) Argument
you would be in any difficulty there, Mr. Hays. Now, what is the question you want to ask Doctor Penistan?
MR. HAYS :
He has already answered, My Lord, that this is a 10 picture of the girl.
HIS LORDSHIP:
That is the question you want to ask?
MR, HAYS:
Yes, but now does Your Lordship see objection to it being entered? I only bring it out for that one purpose.
HIS LORDSHIP:
I don't know why you need it, but if you insist on it, I can't see that it is objectionable.
MR. DONNELLY:
I do submit this picture is apt to inflame the Jury. I am prepared, as I stated, to have my friend call Doctor Brooks, who identified the body, and Doctor Brooks might say: "Yes, this is the girl I saw."
MR. HAYS:
"This is the girl I knew and this is the girl who was in the bush and I identified her. "
MR. DONNELLY:
40 Doctor Brooks will say he knew the girl well and lived quite close to her on the Station, and it was her body that was found in the bush. And this witness has said 1 Doctor Brooks has identified the girl to him. If my friend calls Doctor Brooks for that purpose, then I certainly would not argue that he was ,an expert. My friend doesn ' t nekd to f call him at all. I I
I' " - .* . h - ..* d --* < . . - . -..---7.. ------=c----.------=-=--- DR. J. L. PENISTAN PE or Complainant at trial) Argument
HIS LQRDSHIP:
Unfortunately I have to listen to Mr. Hays. Are you going to tender that one as an Exhibit?
MR. HAYS:
Not in view of my learned friend's remarks.
HIS LORDSHIP:
All right, you are not going to tender it. Then I need not make any ruling. Are you through with your examination of Doctor Penistan?
MR. HAYS:
Yes, My Lord.
HIS LORDSHIP:
Call the Jury back.
--- Jury returned,
IN THE PRESENCE OF THE JURY
HIS LORDSHIP:
Do you wish to commence your cross-examination now, Mr. Donnelly? MR. DONNELLY: i There are one or two things I would like to ask. f ! CROSS-EXAMINATION BY MR, DONNELLY: DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
Q. Doctor, you told us about the post-mortem changes in this body? A. Yes, sir. Q. And there were many factors that could con- tribute to the variation of time that it would take for those changes to occur, would it not? A. Yes, sir. Q. And that is not a very accurate way of estimating the time of death. It would be difficult to tie it down within five or six hours of those changes, wouldn't it? A, Yes, sir. Q. Now, you have produced a blouse and you have produced an undershirt and the samples of blood and the scrapings from the finger-nails? A. Yes. Q. And also the leaves and the twig from the bush? A. The Crown Attorney has produced them. Q. I am sorry. You have identified them? A, I have identified them. Q. Yes. Was there anything else you turned over to Corporal Sayeau? A. I turned over the stomach
contents. \ Q. Yes. They were produced, also. Was there anything that has not been tendered in evidence today?
HIS LORDSHIP:
Of what nature?
MR, DONNELLY:
Pardon?
Qo Well, I don't know what all he did give? A. There was the blood from the heart. The dandelion leaves. The blood from the vegetation under the shoulder. Stomach contents. Finger-nails. A blouse from around the neck and the undervest. That is, sir, all that I can re- call. 40 Q, Yes. Well then, the only garment then that you removed from the body, and the only garments you gave t to Corporal Sayeau, was the undervest and the blouse that have been tendered here? A, That is correct. That is the only garments on the body and I removed them. I Q, I see there is considerable blood on the undergarment, the shirt? A, Yes. I Q. Are you in a position to tell us what type i DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
of blood were found? There is At and 0 and B? A. No, sir, I did not carry out that investigation. Q. I am not asking you that. Those are the types of blood? A. I beg your pardon? Would you repeat that question? Q. You agree that the types of blood found in 10 the human body are A, 0, B, and AB? A. Yes, so far as that particular classification goes. There are, of course, innumerable other types. Q. And the 0, what is the percentage of those? A. The 0 is approximately forty-five per cent. That is, in this type of community. Q. Yes. A. A is approximately forty-two per cent. B is approximately ten per cent or twelve per cent, and the balance some five per cent. I haven't added those up, but one hundred per cent is AB, 20 Q. In any event, types A and 0 comprise prac- tically the total population? A. Between them they comprise approximately eighty-five per cent. Q. And A and 0, A is slightly less than O? A. Roughly. Q. Any examination for the type of blood would be made by some person other than yourself? A. That is correct. Q. There is a question about this blouse being cut. It was knotted around the neck, was it? A. Yes. 30 Q, And what type of knot was it? A. As I recollect, it was a reef knot, Q. That is a double knot? A. You tie one half hitch and another half hitch on top of it. Q. The reef knot. It is a double knot, anyway? A. I don' t know what you mean by a double knot. Q, You tie one what? A, One half hitch. You wind one end around the other once, and then you do it again. Q. I see. That is the type of knot that was 40 here? A, Yes, sir. i HIS LORDSHIP:
Half hitches, did you say? A. Half hitches, My Lord.
Qo Two? A. Two. One on top of the other.
Q. I know what a half hitch is, I expect all bi DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
the Jurymen know what it is, but it is not what you are describing, Mr. Donnelly.
MR, DONNELLY:
My knowledge of hitches, or knots ,. ,
Q. It is one you tie two parts -- we have a rope that goes in and the same part would come out along the same side? A. Yes. Q. And if it is divided by the other part, we have a granny knot, and it will slide? A. Whether or not you have a granny knot depends on the sides which the ends cross. I am not an expert. I could demonstrate it much more easily than I could describe it. Q. We have the garment twisted around and then 20 the ends twisted around and then pulled? A. And pulled tightly, yes. Q. And that knot was just below the left chin, was it not? A, That is correct. Qo Apparently tied by a person who was in front of the victim? A. I could tie it from behind, sir, but
j I think it is probably a legitimate deduction. 1 Q. That it was tied by somebody ... A. I could certainly do it from behind, myself. Q. In a struggling person it would be easier to f 30 do it from the front, wouldn't it? A. I have no experience, but I would think not.
HIS LORDSHIP:
Q. I understood you to say before that one part of the blouse was still over the arm. The arm was through it? A. That is right, My Lord. The right arm was still arough the arm of the blouse. i Q, So there was no second end to tie. Like two 40 ends of string? A. Yes, My Lord, the blouse had been so wound up in itself, that it was turned in fact into a rope, which one end was tied to the other end, despite the I fact that the right arm was still through the arm-hole.
MR. DONNELLY:
There wouldn't be much left over? 162
DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
about half an inch to an inch. Q. About half an inch to an inch. When this double knot was tied the ends protruded about half an inch to an inch, is that it? A. Yes, I think so. I should say, sir, that this knot was not closely examined by myself. It was given to the police for further examination. I am 10 speaking from purely a superficial inspection. Q. That is your recollection of it? A. It must have been more than half an inch, sir. Q. I am taking your own figures? A. I don't really wish to tell you an opinion about it because I don't honestly recall clearly.
HIS LORDSHIP:
That is all. We are going to adjourn now for lunch, Gentlemen of the Jury, and you will be very careful to see that no one speaks to you about the case and yo11 speak to no one outside of your own group about it, and please keep your mind open and don't form any opinions on it at the moment.
--- Two Constables sworn to attend the Jury.
--- Jury retired. --- Accused retired.
--- Whereupon the further proceedings were then adjourned until 2: 30 p.m. DR. PENISTAN (For Complainant trial)
--- Upon resuming, at 2:30 p.m.
-_.Accused returned.
--.Jury returned.
DEPOSITION OF DOCTOR JOHN LLYWELLYN PENISTAN (continued)
DOCTOR PENISTAN
resumed,
MR. DONNELLY: 20 Doctor Penistan, this morning we discussed +-he types of blood and the frequency with which they were found in the humans raised in this district. I suppose in your work you have had some occasion to work with blood stains? A, Yes, sir. Q. And is it a fact that if you have a towel that is used in the office and you get some blood on it, you will soak it in cold water as soon as possible, to help remove the blood? A. You mean, sir, this is simply the 30 cleaning of the towel? Q. Yes. A. I wouldn't know, sir. I don't have to do this. Q. Well, is it not a fact that if a blood- stained garment is put in cold water shortly after the blood comes on it, that the blood is more readily removed? A. I think that may well be true. Q. Yes. I suggest to you that if a garment is put in hot water without having been soaked, the heat causes some reaction in the blood that causes it to be fixed 40 to the material so that washing will not remove the stain? A. Yes, if the temperature is high enough, the proteins in the blood will coagulate and tend to remain in position. Q. We have protein in the blood and, is it hemo- globin? A. Partly. Q. And some other factors? A. Yes. Q. Fibres and hemotonia agents and so on? A. Yes, 164'
DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
Q. Chiefly it is made up of hemoglobin and protein? A. Sir, you are getting into verytechnical grounds. The amount of hemoglobin and protein present- is not tremendous in relation to any other proteins present in blood. Q. Once the protein dries it becomes fixed, 10 does it not? A. Yes. Q. On a garment such as a shirt that we have. a shirt that a man would wear, the blood would dry in that in a matter --- if there is nothing to keep it moist, in a matter of an hour or two? A. Given ordinary atmospheric conditions, yes. Q. Ordinary atmospheric conditions of the hiih temperature we had in June, you would expect the blood to be dried in at least two hours? A. You are speaking in general and not referring to any blood on the clothing of 20 the deceased? Q. No, I am talking of no blood on the clothing of the deceased? A. Yes, sir. Q. Supposing a young man had been working on L an automobile and cut his hand and got some blood on his pants or trousers on the 9th of June. You say you are quite
familiar with atmospheric conditions existing at that time? '< A, Yes. Q. That blood would dry on those pants, shirt or trousers in a matter of an hour or two? A. In a few F 30 hours, yes. Q. In a few hours. And once it dried, the protein
content would become fixed in the fabric? A. It would be i,I more difficult to remove. Q. And even if the garment was washed, with a chemical test you would still find traces of blood in the garment? A. Yes, I think so. Q. You would agree, would you not, that if a
garment were placed in cold water there would be more chance . I of removing any trace of blood than if it were placed in hot 40 water? A. Yes. Q. And if we had hot water used to wash clothes i in a garment with some blood stains on it, were put in that water, the heat of the water would tend to fix the blood in the garment, if it were not already fixed? A. Yes. I feel i the degree of heat involved has to be fairly high. Q. Yes. So we could take it that when it is under normal circumstances such as we had on that day, that DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
the blood from an injury that we have described, a man working on an automobile, that the blood would be fixed in a matter of a couple of hours? A. The blood would be dried within two or three hours, I would think. Q, And once it dries it becomes fixed, doesn't it? A. Yes, I think that is a fair word to use. I think, sir, I should qualify what I said by pointing out that a small stain will dry quickly, even, perhaps, under the hour, but material that is soaked in blood, of course, will take many hours to dry. Q. Yes. Depends on the size of the blood spot? A. Yes. Q. Even if we had a large spot we would find some drying around the outside edge? A. I would think so. Q. It wouldn't all dry at the same time? A. NO, it would dry from the edge. Q. Drying from the edge. We would find that dry- ing from the edge progressed in an hour or two? A. ?:.*es. Q. 'And possibly a large part in the centre wouldn't be dry for some considerable time? A. Yes. Q. We agree, once the blood dries it becomes fixed in the garment? A. It is more difficult to remove. Q. Is that not the term you use, "fixed"? A. That isn't a term, sir, I have used myself in this connection, but the word fixed is used in connection with dyes. I think it is legitimate to use itoL Q. It is fixed fairly permanently? A. That is a question that was running through my mind. The word "fixed" perhaps does fit the fact that it is there per- manently and I don't think it is necessarily true of dried blood stain. Q. Could blood be fixed so it could become per- manent? A. I think that if you use mordant such as formaldehyde, you might be able to fix it fairly permanent. Q. How soon does the iron faction in the red blood cells start to rust? A. You mean oxidize? Q. Yes, oxidize or rust? A. That is a question I can'thonestly now answer. One tests these stains not for the oxygen content of the iron pigment, but for the presence of iron, itself. I couldn't answer that honestly
from my knowledge. 9: Q. The reason I was concerned, Doctor, I was going to suggest if you could answer that, that once the iron faction in the red blood cells becomes oxidized or 1I I DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
rusts, it is quite firmly attached or fixed in the garment? A. I think it would be difficult to remove. Q. It would be difficult to remove. So I suggest to you that this oxidization of iron in the red blood cells would commence as soon as the blood was dry? A, The problem is not quite as simple as that, surely. The iron 10 in the red blood cell is not free iron, but the iron in the red blood cell is contained with hemoglobin, and the normal function of the complex of iron and globin is to carry oxygen which it takes up very easily, and to give oxygen out. In supplying the tissues of the body with blood and in picking up oxygen through the lungs, The atom iron, which I think you are considering, before it can unite any permanent chemical combination with oxygen, must first be liberated from the hemoglobin contex in the blood, and this will take some time, 20 Q, Yes. Well, I suggest to you that heat separates the globin, Probably before we go to that. The red blood cells are composed of a fraction of iron and protein called globin, aren't they? A. Yes. Q. And the heat will separate the globin from the iron faction? A. No, my previous answer isn't quite correct. Red blood cells are not composed -- hemoglobin is composed of a fraction of iron and globin. The hemoglobin in the red blood cells is composed of a fraction of iron and the protein globin, 30 Q, Yes, And I suggest that heat will cause the globin to separate from the fraction of iron? . A. That is correct, Q, To facilitate the change, as soon as we get heat a fraction of iron is separated from the protein globin? A. I think that is correct, Q, And it will start to oxidize? A, Yes, Q, Or start to rust? A, Yes, Q, And I suggest to you that process would be 1 t well advanced within twenty-four hours? A, I don" know 40 the answer to that. Q, You don't know the answer to that, Now, before we go on, we have Exhibit number twenty-seven, which is a blouse that you found on the body. And this was knotted around the neck in the manner in which you told us, And I then you say you used a knife or scissors to cut to the left of the knot; is that right? A. That is correct. Q, That is correct. Now, I suggest to you that DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
when you cut the knot or cut to the left of the knot, there was no sizeable piece -- probably I should have put it this way. When you cut to the left of the knot, the blouse was still all tied together. You didn't have two pieces in your hand? A. No. i Q. It was still in one unit, tied together? A. 10 Having cut through theliouse to one side of the knot and then had the blouse in a rolled up strip or wad with a knot 1; in it and two cut ends. Q. And two cut ends. There was no sizeable piece cut out in your cutting of this? A. I did not know- ingly remove anything from the blouse. Q. Is it safe to say, so far as you know of the blouse that you found on the neck of this body and on the t shoulder of the body, of the blouse found on the body probably would be better, was turned over by you to Corporal 20 Sayeau? A. So far as I knew that was so, sir, yes. Q. So far as you knew? A. I did not notice or observe any piece escaping.
Q. After you turned over this blouse or portion I i of blouse to Constable Sayeau, you didn't see any left over? A. No, I did not. Q. And if there had been any sizeable piece, and I mean a piece two or three inches square, you would have I noticed that lying around, wouldn' t you? A. I am not at all aware this is true. The conditions under which the 30 autopsy was carried out, were not satisfactory. The lighting r was very bad. I had to bring in a standard lamp from out- side. The floor space was limited. I could not deny that I had overlooked a bit. 1 Q. Yes, but you can't say there was any left I over that you know of? A. None that I know. ! Q. It was your intention, I take it, to deliver the whole garment as you found it, to Corporal Sayeau? A. I say I was conscious of the fact that as I cut through the 1 blouse to one side of the knot that I might well liberate a 40 bit. Q. A very small portion? A. I don't know. li Two or three inches perhaps. HIS LORDSHIP: I Why? A. My Lord, it is a question of the folds that were present in the blouse. It was all crushed up It DR. J. L. PENISTAN (For Complainant at trial) Cross-exam. together to form this ring around the neck. Q. And you cut straight through? A. I could not, My Lord, cut straight through. My scissors were not large enough. It had to have several attempts. Q. It wouldn't be any more than fragments, surely, cut out? A. I wouldn't have thought so.
MR. DONNELLY:
Q. When you examined the blouse, there is a very considerable portion missing. Part of the collar and about ten inches of the front, by eight or ten inches wide, is there not? A. Yes, that is true, sir. Q. So I suggest to you you didn't cut off any big piece like that and left it lying around? A. NO, sir, I didn't. Q. There was no big piece cut off like that by you? A. I would doubt I would cut off a piece that size. Q. . It is a very big piece? A. Yes. Q. Yes, a very considerable portion. And we have the back of the garment. You are looking at it now. i It is quite apparent from the collar, isn't it? A. That is the right arm-hole, isn't it? Q. Yes. A. This would be, I think, the back. Q. NOW, where was the puncture wound on the back of the left shoulder of this girl? In what area? Now, would you describe that? A. On the body? r Q. Yes? A. It was immediately at the back of the left shoulder. 1 Q. How far would it be from the top of the shoulder? A. May I demonstrate to the Jury rather than describe it? Q. It is pretty hard to get it in the book. I You better, please. A. I would think about two inches. Q. Below the top of the shoulder? A. Below the top of the shoulder, and about an inch behind the point 1 of the shoulder, in the area that I am now demonstrating. Q. It was pretty well out on the shoulder? A. Yes. t Q. On a short-sleeved garment like this would be your - outside of the area of the garment. When I talk [ about the garment like this, I talk about Exhibit twenty- seven. You have no sleeves at all in the garment? A. I would think it would probably coincide with the border of the I ! DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
arm-hole,
HIS LORDSHIP:
Q. The back border? A. Yes, My Lord, the one furthest from the neck, shall I say. 10 MR. DONNELLY:
Q, Then, if we look at the blouse, which is Exhibit number twenty-eight.
HIS LORDSHIP:
The vest,
MR. DONNELLY:
I am sorry, the vest or undershirt,
Q. You told my friend something about having marked it: "Front"? A. Yes. Q, This is the outside of the front. It is on the outside. And the cutting of this was up the left side below the armLhole? A, Yes. Q. Yes. Now then, please, I suggest to you the blouse has even less covering -- I am sorry. his undershirt has even less covering than the blouse in the area of the shoulder? A. Yes. Q. And I suggest to you that this wound would be outside the blouse. The blouse wouldn't be covering the wound? A, No. Q. In its normal position. HIS LORDSHIP: I
40 . You mean the undershirt.
Yes, My Lord, I get the blouse and undershirt mixed up. Q. Have I confused you about that? A. No, I DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
sir, that is quite all right. I think that the border of themhole at the back of the blouse -- am I making myself clear, sir? Q. Yes, I think so. A. Does come out a con- siderable way and I think that my commnt on the shirt -- on the blouse, is probably equally true to the vest, namely, 10 that the border of them-hole here would be on the same axis, same vertical axis as the hole in the back of the shoulder. Q. I see, Doctor, thank you very much. Now, if we look a little further at Exhibit number twenty-eight, we see considerable blood on the back of the left arm opening? A, Yes. Q. And we see considerable blood on the right side of the back too, do we not? A, Yes, they have the appearance of blood stains, 20 Q. Yes. And if the stains that are in the right half of the back are her blood stains, they would be some considerable distance, as the garment was pulled up in the position you found it, from this wound or cut that you told us about on the left shoulder, were they not? A. Yes, this one by the other arm-hole. I agree. Q, We have blood or we have stains on the front of the right strap over the right shoulder? A, Yes. Q. And below the arms, just below the arm-pit? A, Yes. 30 Q. And to the back. Considerable staining on the front. I don't suppose you can tell whether that is blood? A. I don' t think that is blood. Q. You don't think the staining on the front is blood? A, No, sir, it doesn't look like it to me. Q. I see. That is fine, thanks. Now, you told His Lordship that the cause of death was asphyxia by strangulation by ligature by the blouse; is that correct? A, That is correct. Q. And by asphyxia, that simply means cutting 40 off of the air supply or oxygen supply? A. Yes. Q. Now, is it true that there were no marks on the neck of this body apart from those caused by the blouse? A, I could find none. Q. Yes, and you examined them for that purpose, did you not? A. I did. Qe There were no finger or thumb marks on it? A. No, sir. DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
Q. So it is your beEef that it was the blouse alone, was the instrument in causing the strangulation? A. Yes. Q. Yes. And I suggest to you further, Doctor, that there was no injury to the face? A. No, sir. Q. No, sir. Any discolouration of her face was iO caused by the post-mortem changes due to the asphyxiation? A. The changes due to the asphyxiation wouldn't be post- mortem changes,
HIS LORDSHIP:
Q. Not the what? A, Post-mortem changes.
MR. DONNELLY:
Q, The discolouration was as a result of the strangulation? A. Yes.
HIS LORDSHIP:
Q, Wouldn't it also be as a result of the changes caused by the beginning of degeneration? A. To a slight extent, perhaps, My Lord. But in strangulation there is a tremendous congestion of the skin of the face. Q, We are talking about the discolouration of 30 the face when you performed the autopsy on Thursday evening, which is forty-eight hours after it disappeared? A. Yes, My Lord. Might I make this point? This particular colour in the face was absent from the rest of the body except, perhaps, for the arm where some post-mortem lividity had occurred. These were not post-mortem changes, because they were on the front of - the face, Q, I thought that is where post-mortem changes usually appeared, on the face? A. Yes, I am speaking of mobility due to the settling out of blood at the back 40 on the dependant parts. The front of the face is not a dependant part,
HIS LORDSHIP:
All right,
MR. DONNELLY: Thank you, My Lord. DR. J. L, PENISTAN (For Complainant at trial) Cross-exam.
Q, you feel this discolouration was as a result of the blood not being able to get back down? A. Yes. Q. It wasn't able to get back down into the body? A. Yes, Qo And that was caused by the blouse being twisted around the neck? A, Yes. Q, But there was no sign of injury? A. I saw none. Q, Above the shoulders of this girl, except what was caused by the blouse? A. Yes, sir. Q. That is correct. And the only injury from which any blood came prior to death would be the injury at the back of the shoulder and this scrape or scratch on the left leg? A. Yes, I think so. There is a slight discharge from the private parts as well. But those, undoubtedly, the only major sites. In fact, I should modify that. As I found out at autopsy, the only injury from which blood had evidently flowed was the one at the back of the left shoulder. Q. I didn't quite get that? A. The only injury from which blood had evidently flowed in any quantity was the one at the back of the left shoudder. Q. Yes, well then, I understooc! you to say there was a scratch on the left leg? A, Yes. Qo And that scratch would start some three or four inches above the knee-cap would it? A, Yes. Q. Was that the most prominent part or what was the most prominent part of the scratch? A. It was even, I would say, all the way down, with minor variations. Q, And it commenced some three or four inches above the knee-cap and extended down across the knee-cap? A. Yes. It went across the knee-cap and then there was a break and continued down the front of the leg and then another break and continued over the top of the foot. Q, Continued over the top of the foot. You mean over the top of the instep? A. Yes, further on, shall I say, than the front of the ankle, Q. Below the front of the ankle? A, The medical term is the dorsum of the foot. Q. Below the ankle across the top of the foot, down towards the toe? A. Yes. Q. So we have a scratch of a total length of what? Twenty-four inches? A. Getting on that way. Q, In that neighbourhood? A. Yes, eighteen inches, anyway, Q, Eighteen inches. And you had come to the con- clusion there had been some bleeding from that scratch, had DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
you not, because you found some dried blood or some dried Xluid that had come out? A, Yes, Q. There had been some bleeding. How much, you wouldn't be able to say after two days? A. There was no staining of the section around it by blood. Q. And did this dried blood that you found extend over the full length of it? I would think probably it would, because you told us the scratch was about the same all the way down? A, Yes. Q. Now, you spoke of the fork of the body. I believe at an earlier time you spoke of the crotch? A. Yes, I am using the term synonymously. Q.' It is the same thing? A. Yes. Q. I believe you told us this morning, that there was some wet blood on the twig below the crotch or the fork of the body? A. Yes. Q. Yes. You found that.
HIS LORDSHIP:
Q, Did I understand you this morning to say your estimate was that she had probably lost an ounce of blood in all? A. From the shoulder. The amount from the fork was negligible, just enough to stain a twig and a leaf or two.
MR. DONNELLY:
Q. I understand you, Doctor, to say there would be about a tqblespoon full of blood in this area? A. Yes. Q, Just below the wound? A. Yes, I was referring to the wound to the shoulder. Q, Well, there must have been a lot more blood than that, according to this shirt. That was in this little pool you found a tablespoon of blood? A. Yes. Q. There must have been a lot more blood than that from some source? A. I would think, assuming that the blood on the vest and the blood on the ground came from the same source, I would estimate perhaps the total quantity would be twice as much as I found on the ground. Q. This tablespoon full doesn't refer -- what you spoke of this morning, doesn't refer to the blood on the vest? A. NO, sir, that is solely the blood on the ground. Q. The blood on the ground. 174
DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
- -
HIS LORDSHIP:
Q. It boils down to this. She didn't lose much blood? A. No, My Lord. Q, The amount was very little? A. Yes.
MR, DONNELLY:
Q. Was there any test made to see how much blood she had lost? A. I am unaware of any such test made on cadaver. In my opinion, there was no appreciable exsanguina- tion or loss of blood, Q. Is it possible this scratch that you found on the left leg, and which you described as some eighteen inches long, could have been made from one to two hours before death? A. Yes, sir. Q. You spoke of some bleeding in the neck. That was deep, internal bleeding, was it? A. Yes. Q. 'There was no bleeding from the skin? A. No, sir. Q. Or immediately under the skin? A. No, sir. 1 HIS LORDSHIP: t Q. Was there no depression in the neck, anywhere near where this blouse was knotted about the neck? A. In 30 the tissues of the neck, My Lord. I Q. Yes, was there any depression? A. No, My Lord. Qo None? A, None. Q. No mark around? A. Only the pallor of the
skin. iI Q. The change in the pallor of the skin? A. Yes. It was a fairly wide band, My Lord, so one wouldn't expect it to cut into the skin or the tissues. I would estimate the diameter somewhere in the region of one and a 40 half to two inches. Q,, You took it off, You must have felt how i tight it was? A. Tied tight, My Lord, but it was applied over a devias area, over a wide area.
MR, DONNELLY:
Qo Yes. NOW, Doctor, you told us -- maybe X I 175
DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
had better ask you about the bush. You saw these marks that Corporal Erskine told us about? A. You are referring to the marks in the soil beyond the feet? Q, Yes. To the west of the feet, You saw them? A, Yes. Q. I wish to refer you to question four hundred 10 and four, page sixty-seven of your earlier'testimony:
" Q. 404: And you mentioned the marks to the west of the feet, Were there any marks between the legs at any point?
Answer: Not that I observed, '"
That is correct, is it? A. As far as I can recall,
HIS LORDSHIP:
The number of that question, again?
MR, DONNELLY;
" Q. 405: Did you look for them?
Answer: Yes, we looked very carefully. I'
Were you asked that question and did you make that answer? A, I did, Q, And that is true, is it? A, That is true. Q. So that from the crotch of the body to the point where these marks were west of the feet, your careful examination disclosed no marks in that area? A, I think t perhaps I should explain that a little bit. There was no 40 definite marks. No imprint or anything of that sort, but the vegetation in that area was flattened down or, compressed. Q, That is not what you told me on an earlier t occasion, Doctor, now.
II Were there any marks between the legs at any point?
Answer: Not that I observed. " DR. J. L. PENISTAN PE or Complainant at trial) Cross-exam.
Now, that is pretty clear, isn't it? A. No, sir. When one speaks of marks, one normally means imprints. These were not imprints. There was, as I say, a general flatten- ing of the vegetation in that area. Q. But no imprint on the surface of the ground? A. No imprint on the surface of the ground other than general 10 flattening of vegetation. Q. No imprint, other than there might have been some flattening of the vegetation? A. There was some f flattening of the vegetation.
HIS LORDSHIP:
Q. You, yourself, in the next question and answer i used the word marks. You don't use imprints. Four oh six.
MR. DONNELLY:
Pardon, My Lord?
HIS LORDSHIP :
The words are: "no marks".
MR. DONNELLY:
" Q. And we can take it from the marks west or below the ends of the feet -- I should not say 'below' -- but to the west of the ends of the feet, between that point and the crotch of the girl you could find no marks on the ground?
A. No, sir, other than stains which I
have already described. 'I
Were you asked that question and did you make that answer? A, Yes. Q. And the stains which you have described were the stains on these twigs -- this twig and these 1 leaves which have been filed as an Exhibit? A. Yes. Q. At that time you mentioned no flattening. I You mentioned stains but no flattening? A. Do you mean I
I DR. 3. L. PENISTAN (For Complainant at trial) Cross-exam.
I specifically said there was no flattening? Q. I said you didn't mention flattening. A. That is correct. Q. I mentioned marks and you referred to stains. Now, you have told us about finding some acid phosphatase in the vagina of the body? A. Yes. 10 Qo In what part of the body did you find the acid phosphatase? A. In the upper part of the body. Q. In the upper part. And was there some injury to the upper part of the vagina? A, No, I saw no injury there. Q. You saw no injury there.
HIS LORDSHIP:
Q. Doctor, you must have made a memorandum of these things, did you? A. Yes, My Lord. Q. You haven't used your memorandum at all? A. No, My Lord. Q. If you want to refresh your memory you can use your memorandum? A. I have it available, My Lord. Q. I assume you have not found it necessary to refer to it? A. No, My Lord.
MR. DONNELLY:
I am going to read to you -- this is a long answer. This is three hundred and seventeen at page three hundred and fifty-two (52) :
I' Q. What was obscured?
Answer:There was no trace of a hymen. The skin was cut through the walls of the lower part of the vagina and of the external parts -- showed again marked post-mortem changes and a great deal of congestion, which was confirmed under the microscope, but there was no evidence of bleeding into the tissues microscopically and, as I com- mented previously, there was no DR. PENISTAN (For Complainant trial)
11 -- only slight loss of blood from the vagina. That was demonstrable by the blood stains below the crotch, which
was rather in contrast to the I changes which in my opinion, were due to injury that I found there. "
Now, this was on the 13th of July, was it not? A. On the 11th of July. I beg your pardon, you mean the hearing? Q Yes? A, Yes. Q. Your memory then would be better than now, I take it? A. I don't think so. Q. All right then. It wouldn't be any worse then? A, I hope not. 20 Q. So, to go on to the next sentence:
" In the upper part of the vagina there
was evidence of injury, and little to L the naked eye appearances of post- L mortem change. From this part of the vagina I removed some thick whitish fluid which lay there. "
That is quite clear, on the 13th of July, you said there was 30 some change to the upper part of the vagina? A. Sir, with the greatest respect, that is an error on the part of the trans criber. ! Q. An error on the part of the transcriber? Well, there must have been an error in the whole thing. What error do you suggest the transcriber made? I will read it to you again :
'I In the upper part of the vagina there was evidence of injury. "
Do you say there was an error there? A. Yes, he left out the word: "No". Q. All right. t " In the upper part of the vagina there was evidence of injury and little to the naked eye appearances of post- I DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
" mortem change. From this part of the vagina I removed some thick
whitish fluid which lay there. I'
It was from the upper part of the vagina you removed some thick whitish fluid? A, It was. 10 Q. This thick whitish fluid, you say, contained acid phosphatase? A. It did. Q. And acid phosphatase is a product of the prostate gland, is it not? A. This particular form of acid phosphatase is. Q. We get acid phosphatase from red blood cells? A, Yes. Q. And from certain parts of the marrow of the bones? A. Yes. Marrow of the bones contain acid phosphatase. 20 Q. Yes. We have acid phosphatase in various parts of the body? A. Yes, sir. Q. Remember, sir, you said acid phosphatase is the male semen and a product of the prostate gland of the male? A. Yes, sir. Q. There is no prostate gland on the female? A. NO, sir. Q. Yes. Now, did you find some indication that there had been sperm or something that led you to believe there had been sperm or spermatozoa in this thick whitish 30 fluid? A. I found, as I described to the Crown Attorney, degenerating forms in the microscopic preparation, which I believe were degenerating spermatozoa, but the outline was not sufficiently clear for me to honestly diagnose them such. Q. We are faced with this fact, are we not? The sperm is an organism? A, It is a cell. Q. It is a living cell? A, Yes. Q. It is an organism. A living organism? A. I suppose so, yes. Q. Yes, and the acid phosphatase is a chemical? 40 A, Yes. Q. Which is an acid. A chemical? R Yes. I Q. And the sperm will not last nearly as long as the acid phosphatase under the conditions which you found? A. That is true, 1 Q. So that in your examination of this thick whitish fluid you did find certain cells that coloured up and were some indication to you that at one time there had DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
been sperm cells there, but they had degenerated? A. They suggested that. Q. That is what you would expect, isn't it? A. That is what I would expect. Q. Now, is it true, the bigger a prostate gland 10 the more acid phosphatase is produced? A. Not necessarily, sir. Q. Did you make any reading to determine the con- centration of this acid phosphatase? A. Yes, sir, in an approximate mahner. Q. What method did you use? A. The material from the vagina was collected on a cotton swab, that is, a piece of cotton wool, applied to the end of an applicator stick. These swabs are normally used for collecting bac- teriological specimens from throats and so on. This swab was 20 immersed in the pool in the vagina, and then it was placed in a small screw capped bottle containing a special meeium which I used for transporting cultures for bacteriological purposes. The estimation of acid phosphatase was done upon this fluid in which this swab was immersed. Q. Yes. Now, do you agree that a man would have -- a grown man -- you would expect a much larger prostate than a boy of thirteen to fourteen years? A. Not greatly. In middle age, when it became pathological, it might. But I don't think there would be any great difference on a boy 30 fourteen or fifteen of normal size, and an adult of the same measurements. Q. I suggest to you that the prostate glands develop as the body develops and continues to develop until the body is fully developed? A. That is true. Q. That is true. So a man one hundred and thirty pounds and a man two hundred and fifty pounds, there could be a big difference in the prostate gland, would there not? A. No, sir. Q. I thought you said the prostate gland con- 40 tinued to grow as the man grew? A. That is true, but this is by no means true that any organ of the body in a two hundred pound man is twice the weight of a one hundred pound man. Q. I don't say twice. I said larger. Much larger? A. I don't think the difference would be significant. Qo Is the Bodansky method a well-known method DR. PENISTAN (For Complainant at trial)
of examining acid phosphatase for concentration? A. It is very well known. Q. Did you use it? A. No, sir. Q. Is King Armstrong a very well-known way of examining acid phosphatase for concentration? A. It is, 10 Q, Did you use it? A, I did, Q. What reading did you get? A. The fluid in which the swab was immersed gave me a reading in the region of four hundred units per one hundred cubic centimetres. Q. Which is a comparatively low reading? A. A very high reading.
Qo I suggest a normal reading is five hundred in the King Armstrong? A. In blood? Q. No, no, acid phosphatase semen? A. No, sir, it is less than four. 20 Q. Less than four. Was there any injury to the pelvis of this girl? A. To the bony pelvis? Q. Yes, A, No, sir. Q. Was it distorted in any way? A. No, sir.
Q. Now, Doctor, you made some examination of I the contents of the stomach? A. I did. Q. Was it by the naked eye or a chemical test? i A. By the naked eye. Q. Your examination of the contents of the stomach was simply by the naked eye? A. Yes, sir. I 30 Q. I understood you to say this morning you found some meat? A, Yes, sir. I Q. Did you say you thought some of it was ham? I A. I thought some of it looked like ham. It was a reddish- brown colour, and some looked like the white flesh of fowl.
Q. Yes. Do you remember what you told us on the I 13th of July? I am going to read, and if my friend wants to, I wi 11 read the whole answer to question three hundred t and twenty-four, but it is fairly long. i
40 HIS LORDSHIP : I Three hundred and what? MR, DONNELLY: -1 Three hundred and twenty-four. It is about a If my friend wishes it, I will read it all, but part i DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
of it is on a different matter.
I will read the last few lines of the answer and if you think it is not fairly put, I will read the rest of it to you:
" The meal I found in the stomach con- sisted of vegetables, in which peas were predominant. I saw some onion and a little meat, which I feel was probably ham. "
Now, did you make that statement on the 13th of July? A. As far as I can recollect. Q. I suggest to you at that time you mentioned nothing about white meat or fowl. What do you say? A. I 20 agree, sir, with the record. Q. You didn't mention white meat on the 13th of July. Why mention it now? A. Because I am doing my best to tell you what I recall. Q. You were doing your best on the 13th of July? A. I trust so. Q. You were on oath, the same as you are here? A. Yes, indeed. Q. And you were doing your best then to tell us what you found? A. Yes, sir. 30 Q. And at that time you only mentioned a little meat, "which I feel was probably ham", and that was *vour opinion at that time, wasn't it? A. Yes, sir.
HIS LORDSHIP: I I think I should, in fairness to the Doctor -- I mentioned about your notes before. If you want to re- fresh your memory, you may refresh it from your original notes. i 40 MR. DONNELLY:
Q. Do you wish to refresh your memory from your notes? A. No, sir. I
HIS LORDSHIP : DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
Q. You say you made a record of white meat in your notes or not? Because I assume you would make a record of those things in your original notes. Would your notes not disclose all those contents in the stomach? A. I think so. I will check and see what the notes say. Q. Yes, I think you should, No one can be 10 expected to remember little details over a long period of time . A. The record, sir Q. That is your notes? A, Yes, these are notes made by me in unison with Doctor Brooks at the time. Q. By your dictation? A. By my dictation, yes. My records. I must say my notes say there was no meat. There was no obvious meat.
MR. DONNELLY:
Q. Your notes say there was -- your records show there was no obvious meat on your examination? A. Yes. Q. Is W. S. Hoffman, a professorial lecturer on medicine at the College of Illinois, a well-known authority on the biochemical history of medicine? A. I am afraid I don' t know his name, sir.
MR. DONNELLY:
May I read an extract?
HIS LORDSHIP:
No, not if the doctor doesn't say that he is a well-known authority.
THE WITNESS:
I quite honestly have not heard of him. I am sorry.
MR. DONNELLY:
Doctor, I suggest to you that there are many factors that enter into the digestive process. They either speed them up or slow them down? A. Many. Q. And they are very variable, are they not? A. I am afraid I don't understand what you mean by factors being variable . j 184
DR. J. Lo PENISTAN (For Complainant at trial) Cross-exam.
Q. The person's digestive process may vary from day to day without any apparent cause? A. Yes. Q. Yes. Emotion can be a considerable factor in the digestive process, can it not? A. Yes. Q, Whether it is troubled or untroubled? A. I don't know that troubled emotions have a very great deal 10 of effect. Unpleasant emotions do. Q. And frustration helps to slow down digestion, does it not? A. If it leads to anger. Q. Emotional upset or anger would lead to the slowing down of the digestion process? A. Yes. Q, what about resentment? A, I think if it is accompanied by anger, yes. Qo And improperly masticated food can be a very serious interference with the digestive process, can't it? A. It could slow them down, 20 Q. Can slow them down very materially. Is it not a fact that digestion commences in the mouth with the chewing of the foods. There are certain digestive juices secreted in the mouth? A, Yes. i Q. And that is the purpose of chewing your food, to get the digestive juices and chew the food into a suitable
mass? A, Yes. I Q. And if the food is not properly masticated E. there isn't ... A. There isn't a great deal of digestion that actually goes on in the mouth. I think the main point [F 30 of the chewing is to allow juices to the stomach to get at it, Q. Breaking it up into smaller parts? A. Yes. Fi Qo The same as grinding up grain? A. Yes. Q. And if you don't grind it up the stomach has
A, I that much more to do? Yes, I Q. And it takes the acids in the stomach that muchlonger? A. Yes. Q. And have you known of any test on which im- i properly chewed food will slow down the process? A. Only 40 the tests one makes on junior members of one's own family. One sees the consequences of children bolting their food. I I haven' t any scientific knowledge on the point. Q, I take it, sometimes junior members get sick
and bring up improperly chewed food? A. Yes. fF Q, They are people smaller than this girl here? A. Yes. Q, So you have no scientific data as to how much DR. J. L. PENISTAN (For Complainant at trial) Cross-exam.
the digestive process of a twelve-year old girl would be slowed down by improper chewing of her food? A. NO, sir, only by my own experience of seeing stomach contents on many autopsies cut open. Q. Yes, but there is no scientific data on it? A, Not that I am aware of, Q. There is scientific data on pretty well any- thing, if you can obtain it? A. I say that is a wide statement. Q. I suggest if it is possible to have scientific data on that point, you would have found it? A. I have looked for it and I didn't find it. Q. I suggest if it could be obtained, you would have obtained it? A. I would think so. Q. Because that is something of very considerable interest to people in the medical profession? A. Yes. 20 Q. Yes, surely. NOW, did you say that peas were predominant in this stomach? A. Yes, there was a lot of peas. Q. A lot of peas. NOW, the outside covering of the pea is a cellulose, is it not? A. Yes. Q. I suggest to you cellulose are not digested in the stomach? A. NO, that is one of the points in chewing your peas. Q. They are not digested in the human tract at all? A. Oh! yes, sir. 30 Q. I suggest they go through like corn. I suggest that cellulose and half cellulose are not digested in the digestive tract of a human being? A. That is true. Q. So you wouldn't expect the outside covering of all the peas you found in the stomach to be digested there? A. Not unless the outside covering was broken open. Q. Yes. What peas were swallowed hurriedly, they would just stay there because the outside covering would never be digested? A. Yes. f Q. In poorly masticated food you would find 40 peas go down in that form? A. Yes. Q. Yes, surely. Did3you open the small bowel? t A. NO, sir, not through its entire length. Q. How much of it did you open? A. I opened probably two or three feet and inspected the contents. Q. How long is the small bowel? A. It is about sixteen feet. I Q. I suggest to you it is twenty-two feet long? It DR. J. Lo PENISTAN (For Complainant at trial) Cross-exam.
A. Depends whether it is in contraction or distension. I agree, in death, it is probably twenty-two feet. Q. Twenty-two feet. And you opened up two or three feet? A. I opened the upper segments. Q. You opened up two or three feet of it? A, Yes. 10 Q. So you are in the position you didn't open the full twenty-two feet of small bowel? A. Not further down, no. Q. NOW, the stomach is a muscular organ, isn't it? A, It has muscle in its wall. Q. And the muscles are used to press the food out through the pylorus? A. Yes. Q, The food doesn' t just flow out to the duodenum, it must go through the muscle of the pylorus? A. Yes. 20 Q, And the muscular contraction of the stomach , . A, Pushes it out. Q. ' So if we eat a big meal the stomach is dis- tended, and after the meal is half-digested, it appears to be full because of the muscular contraction pushing the food through the pylorus and into the duodenum? A. When you say the stomach is half empty, it would appear to be full? Q. When the mean is half digested the stomach would still appear to be filled because of the stomach being a muscular organ and forcing it into the other digestive 30 tract, because a lot of the digestion takes place in the small bowel? A, A great deal of it. Qo A great deal of it goes to juices, pepsin, Doctor, we have the stomach distended. The breaking down forces the food out of the stomach? A. The volume of the stomach will not become smaller until some of the food leaves the stomach, Qo The stomach contracts to force the food out? A, Yes, Q. If the food were half digested, we still have 40 the stomach full? A. Some of the food would be passed on. It is a constant process. The point I am trying to make is, digestion proceeds so the food is gently and steadily passed on through the stomach. It is not a sudden, spasmodic affair. Q. It is a gradual process? A, Yes. Q. The stomach doesn't give one squeeze and force it out? A, That is correct. Qo It is a gradual contracting, forcing the food DR, J, Lo PENISTAN (For Complainant at trial) Cross-exam.
through the -pylorus? A. Yes. Q. Into the duodenum, into the short connecting link between the stomach and the small bowel? A, Yes. Q. Did you make any tests for the acid condi- tion of the stomach? A, No, sir. Q. I suggest to you as digestion progresses the hydrochloric acid contained in the stomach rises for a considerable period of time? A. If digestion is proceeding, yes. Q. If digestion is proceeding, the hydrochloric acid. content of the stomach rises from about a reading of about one to about seven or nine, is it? A. If you are thinking in terms of units of Desi, normal alkali, one would think in terms of thirty or forty. Q. It rises to thirty or forty? A. Yes. Q, When digestion reaches a certain point, acid starts to drop and we find a semi-alkaline content in the stomach? A. Yes. Q. I suggest to you that the proper way to test the degree of digestion and the point at which digestion has progressed, is by reading -- taking a Ph reading or a reading for the hydrochloric acid? A. Are you suggesting I should have done this? Q. No, I am not suggesting you should have done that. I suggest that is what is done in the laboratory, isn't it? A, Yes, sir. Q. And if some patient in the hospital in Strat- ford is having digestive trouble and the contents of the stomach are sent to you for examination, I suggest that one of the main tests that you make is what is known as a Ph test? A. No, sir, that is not so today, Q. How do you measure the hydrochloric acid of the stomach? A. All we are concerned with in the clinical investigation of the patient today, in the great majority of cases, is whether or not he has got free acid, and the total amount or concentration of it is not regarded as a very great significance. The presence and absence of hydro- chloric acid is the relevant point. Q. Yes. And we have agreed on this, before a person starts to eat the hydrochloric content of the stomach is very small; is that right? A. Yes. Q, And after you have eateh the hydrochloric content rises for what, an hour and a half to two hours? A, An hour and a half and two hours, yes, until the stomach DR. J. Lo PENISTAN (For Complainant at trial) Cross-exam.
begins to empty. Q, An,;hour and a half to two hours? A, An t hour and a half and it gets smaller after that point. Q. And after that you expect a reading of thirty or forty? A. Yes. I think perhaps we should make one thing quite clear. These figures which we are quoting are 10 figures done under experimental conditions, usually of meals consisting of alcohol. Q. Or gruel or soup? A. Yes. These particular things that are used have very little buffering or neutralizing effect on the free acid. I am not prepared to say that the same things are necessarily true on a mixed meal. Q. mat is the test you make of the hydrochloric acid. It rises for an hour and a half to two hours and then we find an alkaline reaction? A. I wouldn't go so far as to say that. I agree it will become alkaline as the juice 20 comes back from the duodenum. Qo Alkaline starts to go in after the high con- centration of hydrochloric acid, as a rule? A. You are talking about the presence of alkali from the duodenum there revealed by the presence along with it of bile, and this did not normally appear until the very end of the two-hour period, If, indeed, it appeared at all. Q. I suggest to you that meat is more slowly digested than some of the softer vegetables? A. Yes. Q. Takes longer to digest? A, Yes. Q. And fat is not digested in the stomach at all? A, No. Q. It is digested in the small bowel? A, Yes. Q. We have it that you didn't makeanyph test? A. No, sir. As I explained previously, the stomach contents after a look by me were placed in a vial and sealed and given to the Provincial Police for further investigation. Q. There were to be some further tests after? A, Yes, I did not pursue the stomach contents. Q, I take it, then, it was sort of a casual 40 examination you made of it. Visual examination? A. I made a visual examination, Q. Did you make any test of the blood for any drug? A. No, sir.. The blood also was given to the police. Qo Was there any chemical test of the contents of the stomach by you? A. No, sir, I already explained, I gave them to the Police at the time. Q, I see. Did you make any examination of the bladder '
1' . . ' '.. .*
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DR. J. L, PENISTAN (For Complainant at trial) Cross-exam,
or urine? A, The bladder was empty. Q. The bladder was empty. It would be impossible, then, to test the urine as to whether any drug had been administered? A, There was no urine. The bladder was empty, congested at its base, no urine there at all, QO If a drug were ungested you could not find 10 any unless you could get a sample of urine? A. Not necessarily. Qo Or in the contents of the stomach? A. More likely. Q. More likely, Thank you, Doctor.
HIS LORDSHIP:
Re-examinat ion?
MR, HAYS:
I will be very brief, My Lord.
HIS LORDSHIP:
Do it now.
RE -EXAMINATION BY MRo HAYS:
Q. In answer to rpy learned friend you said that there was no marks on the throat under the ligature there? A, Yes. Q. Would it be possible for a person to apply pressure by arm or otherwise, about the neck, causing un- consciousness and not leave marks?
I MR, DONNELLY: I i 40 I think this is hardly ,,.
HIS LORDSHIP: I
Arising out of cross-examination.
MR. DONNELLY:
I
I. ". . a*, ; - ,* -.. - -n--..---.I.-- -.-- ..T^.-. -.-...---,--- -,4 -.-?,b..-- *'-C"- -*7,i.iit.t.t.t.t.t.--F.>-~~~CCCCCCCC.CCC.CC.CC '.---.-..,? ...--- <* ".*-.- Y-lr,"Tr .I- -.-"- - -7 -\ - ,-_----.----- DR. J. L, PENISTAN (For Complainant at trial) Re-exam.
Yes, I asked for marks,
HIS LORDSHIP:
I know, but the fact that you asked about marks, I think you can, Mr. Hays, and remember, I asked if it could 10 be done without marks.
MR. DONNELLY:
The doctor has said that death was caused by strangulation by this blouse,
HIS LORDSHIP:
I know he did. I think the question is proper.
MR, HAYS:
Q, Did you get my question, Doctor? A, Could strangulation have occurred by an arm around the neck without leaving any marks?
' Q. Not strangulation, Doctor, Would it be possible for a person to apply pressure about the neck by arm or otherwise, so as to cause unconsciousness and not leave marks? A. Yes, I think so, providing you might 30 exclude the deeper marks. I think under fair circumstances one would find damage, as we find here, to the deeper structures, but I see no reason why such an act should necessarily leave any mark on the neck, itself.
HIS LORDSHIP:
Q, On the outside? A, On the outside,
HIS LORDSHIP:
All right. Is that all? That is all, thank you, Doctor,
THE WITNESS:
Thank you , Lord. DR. J. L. PENISTAN (For Complainant at trial) '~e-exam.
HIS LORDSHIP:
We will now have a short recess.
--- Witness retired, _-- Jury retired.
--- Accused retired,
-_-Whereupon there was a short recess.