Transcript Trustcott - Edmonton`s Criminal Defence Lawyers

Trustcott
Trustcott: Penis Lesion Evidence
• Consisted of medical evidence indicating that
Lynne Harper was raped, and that sores on the
appellant’s penis were consistent with him
having raped her.
• While this evidence was a relatively small part of
the Crown’s case, its simplicity and graphic
nature combined with its apparently impeccable
source, three doctors, made it potentially very
powerful incriminating evidence.
Fresh Evidence
• At a hypothetical new trial, the penis
lesions evidence would have so little
probative value that it could potentially be
excluded by the trial judge on the basis
that its prejudicial potential outweighs its
probative value.
Trial Evidence
• Dr. Penistan testified that on his
examination of Lynne Harper’s body, he
observed that the outer labia of the vagina
had been injured and that the injury “might
possibly have been produced by a blind,
violent thrust of the male organ in the
direction of the entry to the vagina.”
Dr. Addison
• Dr. Joseph Addison performed a medical examination of
the appellant on the night of June 12, 1959, shortly
before he was arrested. Dr. Addison testified that the
distal end of the appellant’s penis appeared swollen and
slightly reddened. He observed two large raw sores that
were “like a brush burn of two or three days duration.”
These sores were raw and oozing serum and were
roughly the size of a quarter. He said that he had never
seen a penis that looked as sore as the appellant’s any
time in his twenty some years of practice, other than in a
case of cancer and a case where a penis had been
stepped on by a cow.
• Dr. Addison testified that the appellant’s penis lesions
must have been caused by “friction in an oval shaped
orifice” such as an “oval shaped knothole or something
like that.” The Crown asked, “[i]s there anything
inconsistent with these [sores] having been caused by
the entry of the male organ into the private parts of a
young, small virgin?”, to which Dr. Addison responded,
“There is nothing inconsistent with it, sir.”
• In cross-examination, Dr. Addison maintained that the
only potential cause for the lesions that he observed was
the insertion of the erect penis into a tight orifice.
Dr. Brooks
• Dr. Brooks was asked for his estimate of when the
lesions were caused. He responded, “[b]etween sixty
and eighty hours before [the examination], I should think,
about that time.” The temporal aspect was emphasized
by a subsequent question from the Crown:
Q. [Mr. Hays]: Would it [the condition of the appellant’s
penis] be consistent ,... I say, with having happened on the
night of Tuesday, June 9th?
A. Yes, it is entirely consistent with that length of time.
• When asked for his opinion on the cause
of the lesions, Dr. Brooks testified:
“My opinion on this, is that the lesion was
caused by the pushing, insertion of an
erect -- of that erect organ into a very
narrow orifice. And if this had been an
older woman without a hymen, this injury
would not have occurred.”
• Dr. Brooks contrasted inserting the erect penis
into a bigger orifice, which could not have
caused these injuries, with penetrating the
genitals of the deceased, “a girl of tender years,
who had not yet reached full maturity. She would
have an entranceway barred by this hymen,
which is something through which you cannot
normally insert a little finger.” He described the
injuries observed in Lynne Harper’s genital area
as being indicative of “…a very inexpert attempt
at penetration.”
Defence: Dr. Brown
• The defence expert, Dr. Brown, challenged the opinions
of Drs. Addison and Brooks on the cause of the lesions.
He testified that it would be “highly unlikely” that vaginal
penetration would produce lesions like those described.
He said that the penis is rarely injured in a rape and,
when it is, any trauma caused by penetration would
normally injure the head, not the shaft of the penis.
• He agreed in cross-examination, however, that the
doctors who performed the actual examination were in a
better position to ascribe the possible cause of the injury.
Crown’s closing
“.. both those men pledged their opinion in that box, that
the injuries to the accused’s private parts were such as
could have been caused by penetration of a young
twelve year old girl’s private parts, and they went further,
that observing these wounds, they would give their
opinion they were from two to three days’ old…. With
those two doctors giving that opinion, that those injuries
could have been caused by the indecent assault of this
twelve year old girl, at the time she was assaulted, and
that is important. The degree of healing, they give it as
two or three days before. One of them may have said
three or four, but they both fitted it in point of time and
doesn’t that observation of theirs on the time that these
were incurred, narrow the gap even more than their
statement as to what could have caused them?”
• The Crown reminded the jury that the
defence expert, Dr. Brown, was not
present during the appellant’s examination
and had not seen the lesions. Accordingly,
he submitted that Dr. Brown’s evidence
could not “throw any shadow of doubt on
the opinions of Doctor Addison and Doctor
Brooks as to the cause and time that I
have gone over.”
Trial Judge to Jury
“…I should have said that the defence theory about the lesions on the
boy’s penis, is, of course, that they were caused by masturbation or
could have been caused by masturbation. They could have been
caused by any roughness or a knothole or any mechanical device or
anything of that kind. Doctor Brown gave it as his view that they
could not have been caused by intercourse with this girl. Now, that is
a matter that you will have to decide for yourselves and you will use
your own common sense as to that phase of it. You will recall, of
course, the medical evidence about those lesions, about their
condition, about the degree of healing and they weren’t really
bleeding and they weren’t really scabbed. There was a serum and
Doctor Brooks and Doctor Addison gave it as their opinion that they
were consistent with having been incurred two or three days
previous to the examination. Doctor Brown said he did not think they
could have been incurred by an attack on this particular girl. That is
what he said. Which view do you accept? That is for you to decide.”
1966 Reference
• At the first Reference, Mr. Martin launched a vigorous and
successful attack on the Crown’s penis lesions evidence. He called
4 experts, each of whom testified that the lesions described on the
appellant’s penis near the time of his arrest were not consistent with
having been caused by sexual intercourse.
• The defence experts agreed that the nature and location of the
lesions made it highly improbable that they were caused by sexual
intercourse. For example, Dr. Norman Wrong, a specialist in
dermatology, testified that the lesions were indicative of many
dermatological conditions. He had seen many diseases where
blisters of that kind could appear. According to Dr. Wrong, “these
lesions are not diagnostic of any one specific thing” and that it is
“extremely unlikely” to have such an injury caused by intercourse or
attempted intercourse.
Crown: 1966 Reference
• The only evidence called by the Crown on the
first Reference relating to the penis lesions came
from the pathologist, Dr. Simpson. He agreed
that the sores were “not the ordinary kind of
injury one sees in forcible or difficult sexual
intercourse.” Dr. Simpson went on, however, to
say that there was a possibility that the sores
pre-existed the sexual intercourse and were
aggravated by sexual intercourse, causing them
to become “more sore or to weep or crust.”
•
By the completion of the first Reference, the evidence had gone from an
opinion that the penis lesions were consistent with having been caused by
forced intercourse two or three days before the appellant’s arrest, to an
opinion that it was highly unlikely that the penis lesions were caused by
sexual intercourse. The majority of the Supreme Court of Canada did not
allude to this significant change in the evidence. Instead, the majority
focused on whether there was evidence before them that the appellant had
a pre-existing skin condition that could have been aggravated by forced
sexual intercourse. The majority concluded:
Our conclusion is that there was a pre-existing condition and
that it was disclosed by him [the appellant] prior to his trial,
although no evidence about it was given before the jury. The
serious condition found and described by Dr. Addison and Dr.
Brooks was consistent with the aggravation of a pre-existing
condition resulting from a sexual assault upon Lynne Harper.
Expert at present Reference
• Dr. Rosenthal essentially agreed with the
experts called on the appellant’s behalf at the
first Reference. In his report, he addressed the
opinion of the Crown’s witness, Dr. Simpson, as
follows:
Dr. Simpson in his testimony of 1966 suggested
that these lesions could have stemmed from a
pre-existing condition aggravated by sexual
assault. I would agree that this is a possibility.
However, it was not exclusively or especially
consistent with that.
Evidence at New Trial
• At a hypothetical new trial, the evidence regarding the
penis lesions would justify the following conclusions:
• it is highly unlikely that the penis lesions were caused by
an act of sexual intercourse;
• the lesions were consistent with the aggravation of a preexisting skin condition;
• sexual intercourse was one of many possible causes of
that aggravation; and
• there is nothing that points to sexual intercourse as a
more likely cause than any of the other possible causes.
Conclusion
• As it currently stands, the penis lesions evidence
is close to no evidence at all. At best, the Crown
at a hypothetical new trial could argue that it was
possible that the penis lesions were the result of
a pre-existing skin condition that was
aggravated by the sexual assault of Lynne
Harper. The Crown would have to concede that
it was equally, if not more, possible that the
lesions were the result of any number of
innocent explanations.
• The graphic nature of the penis lesions
evidence carries with it some possibility of
prejudice to the appellant, although it must
be said that the evidence called on the first
Reference and Dr. Rosenthal’s evidence
would go a long way to eliminating the
potential prejudice from the evidence.