R. v. Lanigan, (1984) 53 N.B.R.(2d) 388 (CA)

• Judge: Hughes, C.J.N.B., Ryan and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 29, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 53 N.B.R.(2d) 388 (CA)

R. v. Lanigan (1984), 53 N.B.R.(2d) 388 (CA);

    53 R.N.-B.(2e) 388; 138 A.P.R. 388

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R. v. Lanigan

(No. 117/83/CA)

Indexed As: R. v. Lanigan

Répertorié: R. v. Lanigan

New Brunswick Court of Appeal

Hughes, C.J.N.B., Ryan and Angers, JJ.A.

February 29, 1984.

Summary:

Résumé:

The accused was convicted by a judge and jury of three counts of robbery. He appealed on the grounds of various errors by the trial judge.

The New Brunswick Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial.

Criminal Law - Topic 2758

Parties to offences - Information - The New Brunswick Court of Appeal stated that the use in an indictment of the words "acting together with" indicates that the prosecution relies on s. 21(1)(a) and thereby excludes the assistance which it may receive by the other subsections of s. 21 - See paragraphs 19 to 21.

Criminal Law - Topic 4361

Procedure - Jury charge - Identification - The New Brunswick Court of Appeal held that a trial judge erred in failing to properly instruct the jury on the issue of identification in that he did not adequately point out the strengths and weaknesses of the testimony given by the two identification witnesses - See paragraphs 7 to 11.

Criminal Law - Topic 4372

Procedure - Jury charge - Alibi evidence or explanation by accused - The New Brunswick Court of Appeal held that a trial judge erred in failing to explain to the jury the meaning and nature of the defense of alibi, in failing to review the evidence in support of the defence and in not dealing with reasonable doubt as it relates to the defence of alibi - See paragraph 18.

Criminal Law - Topic 5240

Evidence and witnesses - Identification - General - The New Brunswick Court of Appeal discussed the weaknesses of and the weight to be given identification evidence - See paragraphs 7 to 11.

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - In attempting to cast doubt on a defence witness the Crown questioned the witness about a conversation he had with the accused in jail, which involved relating possibly damaging statements by the accused - The New Brunswick Court of Appeal held that the trial judge erred in admitting statements by the accused without a voir dire to determine their admissibility - See paragraphs 12 to 17.

Cases Noticed:

R. v. Browne and Angus (1951), 99 C.C.C. 141 (B.C.C.A.), consd. [para. 8].

R. v. Opalchuk (1958), 122 C.C.C. 85, appld. [para. 11].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 44 C.C.C.(2d) 76, appld. [para. 14].

Ibrahim v. R., [1914] A.C. 599, appld. [para. 14].

R. v. O'Leary et al. (1983), 43 N.B.R.(2d) 50; 113 A.P.R. 50, appld. [para. 18].

R. v. Chlow (1982), 41 N.B.R.(2d) 179; 107 A.P.R. 179, appld. [para. 20].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 21 [para. 20]; sect. 613(1)(b)(iii) [para. 22].

Counsel:

The accused per se;

Philip K. Holland, for the Crown.

This case was heard on January 10, 1984, at Fredericton, N.B., before Hughes, C.J.N.B., Ryan and Angers, JJ.A., of the New Brunswick Court of Appeal.

On February 29, 1984, Angers, J.A. delivered the following judgment for the Court of Appeal: