R. v. Gumbly (D.), (1996) 155 N.S.R.(2d) 117 (CA)

• Judge: Freeman, Roscoe and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 13, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 155 N.S.R.(2d) 117 (CA)

R. v. Gumbly (D.) (1996), 155 N.S.R.(2d) 117 (CA);

    457 A.P.R. 117

MLB headnote and full text

Darren Gumbly (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 129968)

Indexed As: R. v. Gumbly (D.)

Nova Scotia Court of Appeal

Freeman, Roscoe and Pugsley, JJ.A.

November 13, 1996.

Summary:

The accused was convicted by a jury of trafficking in a narcotic. The jury was dis­charged. Six weeks later (one day before sentencing) the accused's counsel advised of possible juror misconduct. While the jury was deliberating, the accused and another person allegedly overheard the husband of a juror state that he and his wife had discussed the case and would find the accused guilty. The accused never advised his lawyer. The accused applied for a mistrial. The trial judge dismissed the application for want of jurisdiction. The accused appealed his con­viction, submitting that the trial judge erred in dismissing the appeal and that allowing the conviction to stand would result in a miscarriage of justice. The accused also applied under s. 683(1)(b)(ii) of the Criminal Code to introduce fresh evidence on the appeal (i.e., affidavits of the accused and the other person).

The Nova Scotia Court of Appeal allowed the application to adduce the fresh evidence, but dismissed the appeal. The court affirmed that the trial judge lost jurisdiction after the jury was discharged. The court stated that, assuming the fresh evidence to be true, there was no real danger of the juror being biased against the accused due to her husband's purported influence.

Courts - Topic 2186

Jurisdiction - Loss or termination of juris­diction upon fulfilling function (functus officio) - Prosecutions or criminal trials - A jury was discharged after convicting the accused of trafficking in a narcotic - Six weeks later (day before sentencing), the accused applied for a mistrial on the basis of "fresh evidence" of possible juror mis­conduct - It was alleged that a juror dis­cussed the case with and may have been influenced by her husband - The Nova Scotia Court of Appeal affirmed that the trial judge lost jurisdiction when the jury was discharged and, accordingly, had no jurisdiction to hear the application - The court stated that any concerns respecting the administration of justice and integrity of the court could be addressed on the conviction appeal - See paragraphs 13 to 27.

Criminal Law - Topic 4306

Procedure - Jury - Communications with unsequestered or sequestered jury - While a jury deliberated, the accused and another person overheard the husband of a juror state that he and his wife discussed the case and that the accused would be found guilty on the basis of the evidence that they heard - The accused did not advise his lawyer of the conversation and was convicted - Six weeks later, the issue was brought to the court's attention - The trial judge lacked jurisdiction to grant a mistrial - The accused appealed, claiming that a miscarriage of justice would result if the conviction stood - The Nova Scotia Court of Appeal, accepting the hearsay state­ments for their truth, dismissed the con­viction appeal - The court was not sat­isfied that there was a real danger of bias by the juror based on the husband's state­ments - There was no way to determine whether the husband was telling the truth - There was no appearance of justice not being done - There was no evidence of influence and the evidence supported the verdict - The court stated that the ac­cused's lack of diligence in raising his concerns was not fatal - See paragraphs 28 to 114.

Criminal Law - Topic 4640

Procedure - Mistrials - Jury trial - Juris­diction of judge to grant - [See Courts - Topic 2186 ].

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See Criminal Law - Topic 4306 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - An accused appealing a conviction applied under s. 683(1)(b)(ii) of the Crimi­nal Code to introduce new evidence not to challenge any trial findings, but to chal­lenge the integrity of the trial process (i.e., alleged juror misconduct) - The Nova Scotia Court of Appeal held that the four prerequisites in R. v. Palmer for the ad­mission of new evidence did not apply where the new evidence challenged the trial process - However, some threshold must be met - The evidence must be otherwise admissible - Here, the new evidence was affidavit evidence by the accused and one other person as to hearsay statements by the husband of one of the jurors - The court held that the new evi­dence was admissible only if it met the R. v. Khan test of necessity and reliability - The court held that the affidavit evidence was admissible on appeal - See paragraphs 36 to 68.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 4970 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admis­sion of "new evidence" - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364; 53 Sask.R. 1; 30 C.C.C.(3d) 481, refd to. [para. 13].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 15].

R. v. Lalich, [1989] B.C.J. No. 2386 (Co. Ct.), refd to. [para. 17].

R. v. Gostick (1991), 43 O.A.C. 332; 62 C.C.C.(3d) 276 (C.A.), refd to. [para. 23].

R. v. Palmer (1979), 30 N.R. 181; 50 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 33].

R. v. Nielsen and Stolar (1988), 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 37].

R. v. Strauss (D.W.) (1995), 61 B.C.A.C. 241; 100 W.A.C. 241; 100 C.C.C.(3d) 303 (C.A.), refd to. [para. 39].

R. v. Joanise (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 39].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 39].

R. v. Peterson (B.) (1996), 89 O.A.C. 60; 27 O.R.(3d) 739 (C.A.), refd to. [para. 39].

R. v. Halnuck (P.J.) (1996), 151 N.S.R.(2d) 81; 440 A.P.R. 81 (C.A.), refd to. [para. 40].

R. v. Cole (D.) (1996), 152 N.S.R.(2d) 321; 442 A.P.R. 321 (C.A.), refd to. [para. 40].

R. v. O'Brien (1977), 16 N.R. 271; 35 C.C.C.(2d) 209 (S.C.C.), refd to. [para. 42].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 50].

R. v. Smith (A.L.) (1992), 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 50].

R. v. Perras (1975), 18 C.C.C.(2d) 47 (Sask. C.A.), refd to. [para. 54].

R. v. Zacharias (1987), 39 C.C.C.(3d) 280 (B.C.C.A.), refd to. [para. 54].

Wilson v. R. (1993), 85 Man.R.(2d) 250; 41 W.A.C. 250; 78 C.C.C.(3d) 568 (C.A.), refd to. [para. 54].

R. v. Dyson (1971), 5 C.C.C.(2d) 401 (Ont. H.C.), refd to. [para. 59].

R. v. K.R.G. (1991), 51 O.A.C. 294; 5 O.R.(3d) 406 (C.A.), refd to. [para. 67].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 74].

R. v. Bramwell (H.L.) (1996), 72 B.C.A.C. 125; 119 W.A.C. 125 (C.A.), refd to. [para. 79].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185; 86 C.C.C.(3d) 191, refd to. [para. 84].

R. v. R.C. (1989), 31 O.A.C. 375; 47 C.C.C.(3d) 84 (C.A.), refd to. [para. 84].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 96].

R. v. Kennedy (1857), 3 N.S.R. 203 (C.A.), refd to. [para. 98].

R. v. Horne (1987), 78 A.R. 144; 35 C.C.C.(3d) 427 (C.A.), refd to. [para. 102].

R. v. Nash (1949), 94 C.C.C. 288 (N.B.C.A.), refd to. [para. 103].

R. v. Ryan (1951), 13 C.R. 363 (B.C.C.A.), refd to. [para. 103].

R. v. Cameron (1991), 44 O.A.C. 278; 64 C.C.C.(3d) 96 (C.A.), refd to. [para. 103].

R. v. Mercier (1973), 12 C.C.C.(2d) 377 (Que. C.A.), refd to. [para. 103].

R. v. Gough (R.) (1993), 97 C.R. App. R. 188 (H.L.), refd to. [para. 104].

R. v. Musada (1951), 106 C.C.C. 122 (B.C.C.A.), refd to. [para. 107].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 647(1) [para. 97]; sect. 649 [para. 57]; sect. 683(1)(b)(ii) [para. 3].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 4(1) [para. 1].

Counsel:

Andrew Ionson, for the appellant;

Marion Fortune-Stone, for the respondent.

This application and appeal were heard on October 2, 1996, before Freeman, Roscoe and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On November 13, 1996, Pugsley, J.A., delivered the following judgment for the Court of Appeal.