R. v. Fahey, (1977) 11 Nfld. & P.E.I.R. 232 (NFCA)

JudgeMorgan, Noel and Gushue, JJ.
CourtNewfoundland Court of Appeal
Case DateJanuary 25, 1977
JurisdictionNewfoundland and Labrador
Citations(1977), 11 Nfld. & P.E.I.R. 232 (NFCA)

R. v. Fahey (1977), 11 Nfld. & P.E.I.R. 232 (NFCA);

    22 A.P.R. 232

MLB headnote and full text

R. v. Fahey

Indexed As: R. v. Fahey

Newfoundland Supreme Court

Court of Appeal

Morgan, Noel and Gushue, JJ.

January 25, 1977.


This case arose out of a charge of murder against the accused. The accused was charged, tried and convicted before a judge and jury. The accused appealed on the grounds of various alleged errors by the trial judge.

The Newfoundland Court of Appeal dismissed the appeal and affirmed the conviction of the accused.

Criminal Law - Topic 107

General principles - Insanity - Burden of proof - The trial judge in a jury trial on a charge of murder against the accused explained the defence of insanity to the jury, but did not say that the burden was on the accused to prove insanity in accordance with section 16 (4) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Newfoundland Court of Appeal held that the trial judge should have instructed the jury on the burden of proof of insanity, but that since the error worked to the advantage of the accused, he could not rely on it as a ground of appeal - See paragraphs 12 to 14 - With regard to the burden of proof of defences, compare R. v. Linney (1977), 13 N.R. 217 (S.C.C.).

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defence and theory of defence - The Newfoundland Court of Appeal held that only defences which are supported by the evidence need be put to the jury by the trial judge - See paragraphs 16 to 18.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not raised at trial - The accused was convicted of murder - On appeal the accused argued that the defence of automatism should have been put to the jury, but the point was not raised during the trial - The Newfoundland Court of Appeal stated that automatism should have been raised at trial in order to argue it on appeal - See paragraph 16.

Cases Noticed:

Boudreau v. The King, [1949] S.C.R. 262, appld. [para. 7].

Wu v. The King, [1934] S.C.R. 609, appld. [para. 16].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 16 [para. 12].


John Kelly, for the Crown;

David Sparkes, for the accused.

This case was heard on November 1, 1976, at St. John's, Newfoundland, before MORGAN, NOEL and GUSHUE, JJ.A., of the Newfoundland Court of Appeal.

On January 25, 1977, the judgment of the Newfoundland Court of Appeal was delivered and the following opinions were filed:

MORGAN, J.A. - see paragraph 1,

NOEL, J. - see paragraph 2,

GUSHUE, J.A. - see paragraphs 3 - 18.

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