R. v. Jesso (S.R.), (2015) 362 Nfld. & P.E.I.R. 182 (NLTD(G))

• Judge: Burrage, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 05, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 362 Nfld. & P.E.I.R. 182 (NLTD(G))

R. v. Jesso (S.R.) (2015), 362 Nfld. & P.E.I.R. 182 (NLTD(G));

    1125 A.P.R. 182

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. FE.024

Her Majesty the Queen v. Spencer Rees Jesso

(201401G1104; 2015 NLTD(G) 17)

Indexed As: R. v. Jesso (S.R.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Burrage, J.

February 5, 2015.

Summary:

Jesso was charged with aggravated assault, uttering threats and breach of probation.

The Newfoundland and Labrador Supreme Court, Trial Division (General), found that Jesso acted in self-defence and acquitted him of the aggravated assault charge. The Crown also failed to prove beyond a reasonable doubt that Jesso made the alleged threat and he was acquitted of that charge as well. He was also acquitted of the related breach of probation charge.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - [See Criminal Law - Topic 1420 ].

Criminal Law - Topic 1415

Assaults - Aggravated assault - [See Criminal Law - Topic 1420 ].

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - An altercation occurred between Hynes and Jesso at a beach party - Hynes received three stab wounds to his chest - He was treated at the Health Sciences Centre in St. John's for non-life threatening injuries and released three days later - Jesso received a severe beating to his face, resulting in two black eyes and various cuts and bruises to his scalp, lips and cheeks - Jesso was charged with aggravated assault - Jesso relied on the self-defence provisions in s. 34 of the Criminal Code - The Newfoundland and Labrador Supreme Court, Trial Division (General), found that Jesso acted in self-defence and acquitted him of aggravated assault - With respect to whether a weapon was used, the court found that "Jesso reached out and grabbed something from the beach and struck Hynes with it three times. The object was sharp and pointed and may have been a knife, had one happened to be lying there, but was more likely a piece of broken glass" - The court concluded that "the assault committed upon Hynes by Jesso was reasonable under the circumstances. Jesso found himself the victim of an unprovoked and violent attack on a dark and secluded beach, amongst others, at least some of whom were friends of his assailant. He was relatively helpless while being beaten about the face and under the circumstances held a genuine belief that he was in peril. When the opportunity finally presented itself, he struck back with a force that was reasonable under the circumstances. ... I would add by way of obiter that even if Jesso was in possession of a knife (and I am not prepared to draw this inference) I would conclude that its use to repel Hynes was reasonable under the circumstances just outlined" - See paragraphs 81 to 123.

Evidence - Topic 1183

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - Accompanying acts or statements - General - [See Evidence - Topic 1722 ].

Evidence - Topic 1722

Hearsay rule - Hearsay rule exceptions and exclusions - Res gestae - Utterances as part of the issue or event - Statements of victim - An altercation occurred between Hynes and Jesso at a beach party - Hynes received three stab wounds - Jesso was charged with aggravated assault - Ryan, who had been standing 10 to 15 feet away from the fight with her back turned to it, testified that she heard Hynes exclaim "he's got a knife" - Hynes was Ryan's cousin, and Ryan was "very certain" it was he who called out - The Crown sought to introduce this statement as an exception to the hearsay rule as part of the res gestae - Although Hynes testified, he professed to have no memory of the entire evening - He was therefore unable to corroborate what Ryan claimed to have heard - The Newfoundland and Labrador Supreme Court, Trial Division (General), was satisfied that Ryan heard Hynes state "he's got a knife" - The court was also prepared to infer that the "he" was a reference to Jesso - As the statement was made contemporaneous to the event, the court was prepared to accept it as part of the res gestae - The statement was accepted for the truth of the fact that it was said, but not as proof of the fact that Jesso held a knife - At most it might reflect a subjective belief by Hynes that Jesso held a knife, assuming that Hynes honestly believed that to be the case - As an utterance made in the heat of the moment, there was a circumstantial degree of trustworthiness that such a subjective belief was held by Hynes - It did not follow, however, that the fact Hynes might have thought he saw a knife meant that he did in fact see a knife - The weight given to the statement was to be assessed in light of all the surrounding circumstances - See paragraphs 71 to 80.

Cases Noticed:

R. v. Head (J.B.) (2014), 306 Man.R.(2d) 186; 604 W.A.C. 186; 2014 MBCA 59, refd to. [para. 75].

R. v. Sylvain (W.) [2014] 7 W.W.R. 485; 575 A.R. 59; 612 WA.C. 59; [2014] 7 W.W.R. 485; 2014 ABCA 153, refd to. [para. 76].

R. v. Hopkins (S.) (2014), 360 Nfld. & P.E.I.R. 213; 1118 A.P.R. 213; 2014 NLTD(G) 150, refd to. [para. 82].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 85].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 86].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 87].

R. v. Rankothgedera (U.) (2014), 356 Nfld. & P.E.I.R. 240; 1108 A.P.R. 240; 2014 NLTD(G) 125, refd to. [para. 122].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect 34 [para. 81].

Counsel:

Shawn I. Patten, for the Crown;

Rhona M. Buchan, for the accused.

This matter was heard on January 12 to 16 and 27, and February 5, 2015, at St. John's, N.L., before Burrage, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered oral reasons for decision on February 5, 2015, and the following edited transcript of oral reasons for decision on February 10, 2015.