R. v. Feng (C.M.), 2012 BCCA 153

• Judge: Newbury, Levine and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 03, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 153;(2012), 319 B.C.A.C. 151 (CA)

R. v. Feng (C.M.) (2012), 319 B.C.A.C. 151 (CA);

    542 W.A.C. 151

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.012

Regina (respondent) v. Chu Ming Feng (appellant)

(CA037680; 2012 BCCA 153)

Indexed As: R. v. Feng (C.M.)

British Columbia Court of Appeal

Newbury, Levine and Neilson, JJ.A.

April 3, 2012.

Summary:

The accused appealed his first degree murder conviction on the ground that the trial judge misdirected the jury on the use that they could make of the accused's post-offence conduct, particularly evidence that he deliberately lied to the police.

The British Columbia Court of Appeal dismissed the appeal. The trial judge did not misdirect the jury on post-offence conduct. Alternatively, if her instructions were ambiguous, the court would invoke s. 683(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error where the evidence of the accused's guilt was overwhelming.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - A jury convicted the accused of first degree murder - The accused admitted participating in a murder, but claimed that his mental state made him guilty of second degree murder or manslaughter, but not first degree murder - The accused conceded that the trial judge properly instructed the jury that his post-offence conduct (including deliberate lies to police about his involvement before, during and after the murder) was circumstantial evidence from which guilt could be inferred only if the conduct was consistent with guilt and inconsistent with any other rational conclusion - The post-offence conduct, being equally consistent with murder or manslaughter, was not probative of the accused's mental state - The accused argued that an additional comment by the judge distinguished his deliberately false statements to police from other post-offence conduct, leaving the jury to believe that the general instruction limiting the use of evidence of post-offence conduct did not apply to those deliberate lies - The British Columbia Court of Appeal held that the trial judge did not misdirect the jury on the use of evidence of post-offence conduct - Although the judge could have been clearer when referring to the deliberate lies, in the context of the instructions as a whole, there was no danger of the jury concluding that they could use the post-offence lies as proof that the accused possessed the requisite intent for first degree murder - Alternatively, if the jury charge was deficient, the court would have applied s. 613(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error, because any error was harmless and the case against the accused was overwhelming.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 4399.9 ].

Cases Noticed:

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 34].

R. v. Feil (J.G.) (2012), 316 B.C.A.C. 277; 537 W.A.C. 277; 2012 BCCA 110, refd to. [para. 34].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.AC. 165; 2011 SCC 13, refd to. [para. 36].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 2010 ONCA 346, leave to appeal denied (2010), 416 N.R. 385 (S.C.C.), refd to. [para. 37].

R. v. Jones (K.C.) (2006), 214 O.A.C. 225; 211 C.C.C.(3d) 4 (C.A.), refd to. [para. 41].

Counsel:

J. Blazina, for the appellant;

M. Ainslie and K. Andani, for the Crown, respondent.

This appeal was heard on March 29, 2012, at Vancouver, B.C., before Newbury, Levine and Neilson, JJ.A., of the British Columbia Court of Appeal.

On April 3, 2012, the judgment of the Court was delivered orally and the following opinions were filed:

Levine, J.A. - see paragraphs 1 to 46;

Newbury, J.A. - see paragraphs 47, 49;

Neilson, J.A. - see paragraph 48.