Bleta v. R., [1964] S.C.R. 561 (1964)


Supreme Court of Canada

Bleta v. R., [1964] S.C.R. 561

Date: 1964-06-11

Karafil Bleta (Plaintiff) Appellant;


Her Majesty The Queen (Defendant) Respondent.

1964: April 30; 1964: May 1; 1964: June 11.

Present: Cartwright, Fauteux, Martland, Judson, Ritchie, Hall and Spence JJ.


Criminal law-Non-capital murder-Expert evidence-Defence of automation following brain injury-Psychiatrist expressing opinion based on evidence of other witnesses-Whether evidence of psychiatrist admissible.

The appellant was acquitted on a charge of non-capital murder. In the course of a fight with the victim, the appellant was knocked down or fell down and his head struck the pavement. The victim had started to walk away when the appellant, having regained his feet, followed him and stabbed him fatally with a knife. Some of the witnesses observed that when the appellant got up he staggered and appeared to be dazed. The appellant advanced the defence of automation. This defence was supported by a psychiatrist who had not examined the appellant until more than three months after the incident but who had attended his trial and listened to all the evidence as to the appellant's head injury and his behaviour immediately after receiving it. The expert was not asked hypothetical questions but on the contrary was invited to express his opinion based on the evidence which he had heard. The Court of Appeal ordered a new trial on the ground that this evidence was inadmissible and should not have been accepted by the trial judge even though no objections were taken by the Crown at the trial. The accused appealed to this Court.

Held: The appeal should be allowed and the verdict of acquittal restored.

Provided that the questions are so phrased as to make clear what the evidence is on which an expert is being asked to found his conclusion, the failure to put such questions in hypothetical form does not of itself make the answers inadmissible. It is within the competence of the trial judge in any case to insist upon the foundation for the expert's opinion being laid by way of hypothetical question if he feels this to be the best way in which he can be assured of the matter being fully understood by the jury, but this does not mean that the judge is necessarily precluded from permitting the expert's answer to go before the jury if the nature and foundation of his opinion have been clearly indicated by other means. In the present case there was no difficulty in concluding that the psychiatrist was proceeding on the hypothesis that the appellant's blow on the head and his conduct after receiving it were as described by the uncontradicted evidence of the Crown witnesses, and that his condition as to amnesia, headaches and other symptoms was the condition which the appellant himself described. Where the evidence is open to the construction that the premises upon which the expert's opinion is based were clearly presented to the jury, a Court of Appeal should be hesitant to interfere with the ruling made by the trial judge as to the admissibility of that opinion. All those concerned with the conduct of this trial were satisfied that a proper basis had been laid for the admission of the doctor's opinion. Under these circumstances a Court of Appeal should, before excluding an expert's opinion, be able to make a clear finding that there was no material before the jury to enable it to determine whether his conclusions were properly founded or not. Such a finding was not justified in the present case. The trial judge was justified in proceeding on the assumption that the hypothesis on which the psychiatrist based his opinion had been made clear to the jury and he was accordingly justified in admitting the evidence of that opinion and commenting on it as he did.

APPEAL from a judgment of the Court of Appeal for Ontario[1], setting aside a verdict of acquittal on a charge of non-capital murder and ordering a new trial. Appeal allowed.

A. Maloney, Q.C., for the appellant,

W.C. Bowman, Q.C, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.:-This is an appeal brought pursuant to s. 597 (2) of the Criminal Code from a judgment of the Court of Appeal for Ontario1 setting aside the verdict of a jury which had acquitted the present appellant of the non-capital murder of one Hairedin Gafi and directing that there be a new trial on the ground that certain evidence given by a psychiatrist who was called by the defence was inadmissible and that the trial judge was in error in accepting it and dealing with it as he did.

At the trial a number of Crown witnesses testified that they were present on Dundas Street in the City of Toronto on the afternoon of June 6, 1963, and there watched the course of a fight between Gafi and the appellant which culminated in the appellant stabbing Gafi fatally in the neck. Although the stories of the eye witnesses differ as to the details of the affray, it is clear that blows were exchanged between the two men, that the appellant was knocked down or fell down striking his head forcibly on the pavement and that Gafi had started to walk away when the appellant, having regained his feet, followed him and pulled out a knife with which he delivered the fatal blow. Two of the onlookers observed that when the appellant got up he staggered and appeared to be dazed, and one police officer also commented on his apparently dazed condition, but the other witnesses to the fight made no observation in this regard.

The defence advanced at the trial on behalf of the appellant was that the blows to his head sustained when it struck the sidewalk had the effect of depriving him of all voluntary control over his actions so that he acted as an automaton for a period which included the time when he stabbed Gafi, and that he was therefore not legally responsible for his actions at that time. This defence was supported by the evidence of Dr. Ronald Stokes, a psychiatrist and an Assistant to the Director of the Forensic Clinic at the Toronto Psychiatric Hospital, who had not examined the appellant until more than three months after the incident but who had attended his trial and listened to all the evidence as to the appellant's head injury and his behaviour immediately after receiving it.

The reasons for the Court of Appeal rejecting this evidence as inadmissible are well summarized in the decision rendered on behalf of that Court by Porter C.J.O. in which he said:

Counsel for the accused did not follow the established practice of putting to the expert witness a hypothetical question upon which he could properly base an expert opinion, but asked the expert questions concerning his view of evidence given by witnesses. Dr. Stokes, in fact was improperly permitted to express an opinion based on his own assessment of the evidence. No objections were taken by counsel for the Crown to this evidence, and the trial judge raised no objections, and admitted the evidence without question or argument. In his charge the trial judge discussed this evidence and treated it as if it had been properly admitted, and suggested that the jury should give it a good deal of consideration. Indeed, the evidence of Dr. Stokes was the only evidence that in any way touched upon the subject of automation.

and he continued:

?I am of the opinion that the evidence as presented by Dr. Stokes was inadmissible and the learned trial judge was in error in accepting it and dealing with it in his charge in the way that he did.

The question of whether or not an accused person was in a state of automatism so as not to be legally responsible at the time when he committed the acts with which he is charged, is a question of fact, and indeed may be the most vital question of fact in a criminal case, and it is because the opinion of an expert witness on such a question can serve only to confuse the issue unless the proven facts upon which it is based have been clearly indicated to the jury that the practice has grown up of requiring counsel, when seeking such an opinion, to state those facts in the form of a hypothetical question. In cases where the expert has been present throughout the trial and there is conflict between the witnesses, it is obviously unsatisfactory to ask him to express an opinion based upon the evidence which he has heard because the answer to such a question involves the expert in having to resolve the conflict in accordance with his own view of the credibility of the witnesses and the jury has no way of knowing upon what evidence he based his opinion. Where, however, there is no conflict in the evidence, the same difficulty does not necessarily arise and different considerations may therefore apply.

In M'Naghten's Case[2], certain questions were put by the House of Lords to the judges of England and amongst these was the following:

Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to the law, or whether he was labouring under any and what delusion at the time?

This question, which appears to me to be singularly apt to the present circumstances, was answered by Tindal C.J., as follows:

In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions...

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