R. v. O'Leary and O'Leary, (1982) 43 N.B.R.(2d) 50 (CA)

• Judge: Ryan, Stratton and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 14, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 43 N.B.R.(2d) 50 (CA)

R. v. O'Leary (1982), 43 N.B.R.(2d) 50 (CA);

    43 R.N.-B.(2e) 50; 113 A.P.R. 50

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. O'Leary and O'Leary

(Nos. 134/81/CA; 135/81/CA)

Indexed As: R. v. O'Leary and O'Leary

Répertorié: R. v. O'Leary and O'Leary

New Brunswick Court of Appeal

Ryan, Stratton and Angers, JJ.A.

October 7, 1982.

Summary:

Résumé:

Following a trial by judge and jury, two accused were convicted of rape and robbery. Both accused appealed against conviction. The appeals were heard at the same time.

The New Brunswick Court of Appeal allowed the appeals and ordered new trials, because the trial judge erred in directing the jury.

Criminal Law - Topic 4354

Procedure - Charge or directions to jury - Directions regarding evidence of witnesses, co-accused and accomplices - The New Brunswick Court of Appeal held that a trial judge erred in failing to direct the jury that a statement by an accused in the presence of a co-accused was only relevant and admissible if the co-accused accepted it by "word or conduct, action or demeanour" - See paragraphs 23 to 24.

Criminal Law - Topic 4362

Procedure - Charge or directions to jury - Directions regarding separation of evidence against several accused in a joint trial - Two co-accused each gave inconsistent statements to the police - The New Brunswick Court of Appeal held that the failure of the trial judge during a joint trial to clearly distinguish for the jury the evidence admissible against one and not the other accused and his invitation to the jury for them to compare the statements was a grave error, because it led the jury to consider inadmissible evidence in determining the credibility and weight to be given each accuseds' testimony - See paragraphs 18 to 22.

Criminal Law - Topic 4372

Procedure - Charge or directions to jury - Directions regarding alibi evidence or explanation of accused - The New Brunswick Court of Appeal set out the duty of the trial judge when instructing a jury on the defence of alibi - The court held that the failure of the trial judge to instruct the jury that if the evidence in support of the defence of alibi raised in their mind a reasonable doubt, it was their duty to find the accused not guilty, constituted a nondirection amounting to misdirection - The court further held that the general instruction on reasonable doubt did not alleviate the effect of the nondirection - See paragraphs 11 to 14.

Criminal Law - Topic 4372

Procedure - Charge or direction to jury - Directions regarding alibi evidence or explanation of accused - The New Brunswick Court of Appeal held that a trial judge erred in law in instructing a jury to draw an inference of guilt if they disbelieved the alibi evidence of the accused - The court held that an inference of guilt from an alleged fabrication of an alibi can only be made where there is proof that the alibi was fabricated; mere disbelief is not sufficient to give rise to the inference - See paragraphs 15 to 17.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - In a case where the credibility of the accused was a critical issue, the errors of the trial judge in instructing the jury directly and improperly affected the credibility of each accused - The case was presented on the basis of whose evidence was to be believed - The crucial issue of whether there was sufficient evidence, beyond a reasonable doubt, to convict the accused was not adequately put to the jury - The New Brunswick Court of Appeal ordered new trials for both accused - See paragraphs 25 to 28.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - What constitutes a miscarriage of justice - The New Brunswick Court of Appeal held that for an appellate court to determine that there was a substantial miscarriage of justice, the court must conclude that no jury, properly charged, could reasonably acquit the accused - See paragraph 26.

Criminal Law - Topic 5522

Evidence and witnesses - Evidence of accomplices and co-defendants - Out of court statements by co-defendants - The New Brunswick Court of Appeal referred to the fundamental principle that the statement of one accused is not admissible against a co-accused - See paragraph 19.

Criminal Law - Topic 5522

Evidence and witnesses - Evidence of accomplices and co-defendants - Out of court statements by co-defendants - The New Brunswick Court of Appeal held that a statement made by an accused in the presence of a co-accused was inadmissible and should not have been considered in determining the guilt of the co-accused, where there was no evidence that the co-accused accepted the statement by "word or conduct, action or demeanour" - See paragraph 24.

Cases Noticed:

Lizotte v. R. (1950), 99 C.C.C. 113, refd to. [para. 11].

R. v. Dyck (1956), 116 C.C.C. 392, refd to. [para. 11].

R. v. Davidson, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 15].

R. v. McFall (1979), 27 N.R. 420; 100 D.L.R.(3d) 403 (S.C.C.), refd to. [para. 19].

Schmidt v. R. (1945), 83 C.C.C. 207 (S.C.C.), refd to. [para. 19].

R. v. MacDonald (1965), 3 C.C.C. 332 (N.B.C.A.), refd to. [para. 19].

R. v. Mahoney (1982), 41 N.R. 582 (S.C.C.), refd to. [para. 26].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 613(1)(b)(iii) [paras. 25 to 26].

Counsel:

Eric L. Teed, Q.C., for the appellant;

Phillip Holland, for the respondent.

These appeals were heard before RYAN, STRATTON and ANGERS, JJ.A., of the New Brunswick Court of Appeal, on April 14, 1982. The decision of the Court of Appeal was delivered by ANGERS, J.A., on October 7, 1982.

Please note that a French translation appears below the English language judgment.