R. v. Harper, (1980) 2 Man.R.(2d) 153 (CA)

• Judge: Freedman, C.J.M., Hall, Matas, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 29, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 2 Man.R.(2d) 153 (CA)

R. v. Harper (1980), 2 Man.R.(2d) 153 (CA)

MLB headnote and full text

R. v. Harper

Indexed As: R. v. Harper

Manitoba Court of Appeal

Freedman, C.J.M., Hall, Matas, O'Sullivan and Huband, JJ.A.

January 29, 1980.

Summary:

This case arose out of a charge of murder against the accused woman of murdering her husband in 1959. It was alleged that the woman gave her husband an overdose of a sedative in his coffee and then her lover and future husband smothered him with a pillow when he was asleep. The accused was convicted by a judge and jury of first degree murder, partially on the basis of her own statements to the police. The accused appealed on various grounds, including the improper admission of evidence without a voir dire, and applied to introduce fresh evidence to show that the sedative used was so foul smelling and tasting that the husband could not have unknowingly taken it in his coffee.

The Manitoba Court of Appeal dismissed the appeal and the application to introduce fresh evidence - see paragraphs 1 to 24.

O'Sullivan, J.A., dissenting in part, was of the opinion that a statement of the accused to a police officer was improperly admitted without a voir dire - see paragraphs 25 to 40.

Huband, J.A., dissenting in part, was of the opinion that the application to introduce fresh evidence should be allowed - see paragraphs 41 to 54.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - The accused woman was convicted by a judge and jury of murdering her husband twenty years previously by giving him an overdose of a sedative and then smothering him - The accused applied to introduce fresh evidence to show that the sedative used was so foul smelling and tasting that he could not have unknowingly taken it - It was submitted that the effect of the new evidence would remove the "planned and deliberate" character of the crime charged - The Manitoba Court of Appeal dismissed the application, because the new evidence was not of sufficient strength that it might reasonably affect the verdict of the jury - The Court of Appeal stated that to be effective the new evidence would require additional evidence about the strength of the coffee in which the sedative was allegedly put and about the effect on the sense of smell and taste of the husband of nose surgery, which he had undergone two weeks before his death - See paragraphs 19 to 23.

Cases Noticed:

McMartin v. The Queen, [1965] 1 C.C.C. 142, appld. [para. 23]; consd. [para. 53].

R. v. Buckle (1949), 94 C.C.C. 84, consd. [para. 53].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 610(1) [para. 52]; sect. 613(1)(b)(iii) [paras. 38, 54].

Counsel:

H.E. Wolch, for the accused/appellant;

J.G. Dangerfield, for the informant/respondent.

This case was heard on May 29, 1979, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., HALL, MATAS, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On January 29, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

HALL, J.A. - see paragraphs 1 to 24;

O'SULLIVAN, J.A., dissenting in part - see paragraphs 25 to 40;

HUBAND, J.A., dissenting in part - see paragraphs 41 to 54.

FREEDMAN, C.J.M., and MATAS, J.A., concurred with HALL, J.A.