R. v. Daunt (G.K.), 2007 YKCA 14

• Judge: Finch, C.J.B.C., Huddart and Low, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: November 20, 2007
• Jurisdiction: Yukon
• Citations: 2007 YKCA 14;(2007), 248 B.C.A.C. 201 (YukCA)

R. v. Daunt (G.K.) (2007), 248 B.C.A.C. 201 (YukCA);

    412 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. NO.052

Regina (respondent) v. George Kieran Daunt (appellant)

(YU541; 2007 YKCA 14)

Indexed As: R. v. Daunt (G.K.)

Yukon Court of Appeal

Finch, C.J.B.C., Huddart and Low, JJ.A.

November 20, 2007.

Summary:

The accused shot and killed the victim. He alleged self-defence and a lack of intent to commit murder. A jury found the accused guilty of second degree murder. The accused appealed on the grounds of: (1) impropriety and unfairness in the Crown's closing address to the jury, which prejudiced his right to make full answer and defence; (2) error by the trial judge in instructing the jury on the mens rea requirement for murder; and (3) the post-trial discovery of fresh evidence.

The Yukon Court of Appeal dismissed the appeal.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - The accused admittedly shot and killed the victim - He alleged self-defence and a lack of intent to kill - The jury found the accused guilty of second degree murder - The accused appealed on the ground that the Crown's closing address to the jury was improper and unfair, prejudicing the accused's right to a fair trial - The Yukon Court of Appeal dismissed the appeal - The court agreed that "in presenting closing submissions to the jury, Crown counsel must be accurate and dispassionate. Counsel should not advert to any unproven facts and cannot put before the jury as facts to be considered for conviction assertions in relation to which there is no evidence or which come from counsel's personal observations or experiences. ... Crown counsel is duty bound during its jury address to remain true to the evidence, and must limit his or her means of persuasion to facts found in the evidence presented to the jury." - Although the Crown was guilty of excessive rhetoric and an overstatement of certain facts, the transgressions were "minor and innocuous" - They did not go to the core of the defence - The Crown's closing address, read in its entirety was balanced and neither colourful nor aggressive - The accused was not deprived of a fair trial - See paragraphs 4 to 57.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - The accused appealed his second degree murder conviction on the basis of the post-trial discovery of new evidence - The Yukon Court of Appeal dismissed the appeal on the ground that the "fresh evidence" could not reasonably be expected to have affected the jury's verdict - See paragraphs 63 to 64.

Cases Noticed:

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 52].

R. v. Pisani, [1971] S.C.R. 738; 1 C.C.C.(2d) 477, refd to. [para. 53].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226; 34 O.R.(3d) 620 (C.A.), refd to. [para. 54].

R. v. Sodhi (P.S.) (2003), 175 O.A.C. 107; 179 C.C.C.(3d) 60; 66 O.R.(3d) 641 (C.A.), refd to. [para. 56].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 64].

Counsel:

R.S. Fowler, for the appellant;

M.W. Cozens, for the respondent.

This appeal was heard on June 2, 2007, at Whitehorse, Yukon Territory, before Finch, C.J.B.C., Huddart and Low, JJ.A., of the Yukon Court of Appeal.

On November 20, 2007, Low, J.A., delivered the following judgment at Vancouver, British Columbia for the Court of Appeal.