R. v. Bedgood, (1990) 98 N.S.R.(2d) 426 (CA)

• Judge: Clarke, C.J.N.S., Jones and Chipman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 19, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 98 N.S.R.(2d) 426 (CA)

R. v. Bedgood (1990), 98 N.S.R.(2d) 426 (CA);

    263 A.P.R. 426

MLB headnote and full text

Her Majesty The Queen (appellant) v. Jeffrey Alan Bedgood

(S.C.C. No. 02218)

Indexed As: R. v. Bedgood

Nova Scotia Supreme Court

Appeal Division

Clarke, C.J.N.S., Jones and Chipman, JJ.A.

September 19, 1990.

Summary:

The accused was acquitted of sexual assault following a trial by judge and jury. The Crown appealed the acquittal.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - A trial judge erred, in a sexual assault case, by allowing evidence respecting the accused's request for a polygraph and the refusal by police to give it - The judge also erred in his jury charge respecting this evidence - The sole issue was consent, thus making the accused's and complainant's testimony critical - The Nova Scotia Court of Appeal refused to order a new trial despite the errors, feeling the Crown failed to prove that the whole question of the polygraph test was significant in the jury's assessment of credibility - See paragraphs 12 to 14.

Criminal Law - Topic 4956

Appeals - Indictable offences - New trials - Grounds - Admission of evidence - [See Criminal Law - Topic 4950].

Evidence - Topic 2726

Special modes of proof - Polygraph - Evidence that test not taken - At a sexual assault trial the judge allowed the accused to testify respecting his request for a polygraph test and the refusal by police to give him one - Crown counsel in his address to the jury advised that polygraph results were not admissible, as did the trial judge - The Nova Scotia Court of Appeal held that the evidence was inadmissible; it offended the rule against hearsay and the rule against "oath helping" - The court further held that the trial judge erred in inviting the jury to draw an adverse inference against the Crown, if they wished, from its failure to explain to the accused the omission to give the test - See paragraphs 3 to 11.

Cases Noticed:

R. v. Smith (1985), 70 N.S.R.(2d) 158; 166 A.P.R. 158 (C.A.), dist. [para. 4].

R. v. Béland and Phillips (1987), 79 N.R. 263; 36 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 4].

R. v. Kyselka et al. (1962), 133 C.C.C. 103, refd to. [para. 8].

R. v. Vezeau (1976), 8 N.R. 235; 28 C.C.C.(2d) 81 (S.C.C.), refd to. [para. 13].

R. v. Morin (1988), 88 N.R. 161; 44 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 13].

Counsel:

Kenneth W.F. Fiske, for the appellant;

Joel E. Pink, Q.C., for the respondent.

This appeal was heard before Clarke, C.J.N.S., Jones and Chipman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division, on September 19, 1990, when the following decision was delivered orally for the Court by Chipman, J.A.