R. v. Malone, (1984) 2 O.A.C. 321 (CA)

• Judge: Martin, Lacourcière and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 27, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 321 (CA)

R. v. Malone (1984), 2 O.A.C. 321 (CA)

MLB headnote and full text

R. v. Malone

Indexed As: R. v. Malone

Ontario Court of Appeal

Martin, Lacourcière and Goodman, JJ.A.

February 27, 1984.

Summary:

The accused was convicted by a jury of attempted murder and sentenced to 15 years' imprisonment. The accused appealed against conviction and, in the alternative, against sentence.

The Ontario Court of Appeal dismissed the appeal from conviction and adjourned the appeal from sentence.

Criminal Law - Topic 39.5

General principles - Mens rea or intention - Motive - The Ontario Court of Appeal generally discussed motive - See paragraph 25.

Criminal Law - Topic 4392

Procedure - Charge or directions to jury - Directions respecting inference of guilt - A trial judge stated three items of evidence from which the jury might infer a consciousness of guilt by the accused - The Ontario Court of Appeal held that the judge erred, inter alia, in (1) failing to emphasize the necessity for proof of a deliberate falsehood respecting a material matter to give rise to an inference of consciousness of guilt and (2) failing to place before the jury the accused's explanation of the statements relied on as evidence of a consciousness of guilt - See paragraphs 29 to 37.

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - General - Disposition or propensity - Generally, evidence tendered solely to show that the accused was the sort of person likely to have committed the offence (disposition) is inadmissible - The Ontario Court of Appeal held that evidence relevant to a given issue is admissible, notwithstanding that the evidence also tends to prove disposition - See paragraphs 20 to 23.

Evidence - Topic 1387

Relevant facts - Relevance and materiality - Identity - Motive - The accused was charged with the attempted murder of a victim apparently picked at random - The trial judge admitted writings found in the accused's possession to show motive for killing someone, sometime - The writings consisted of jottings, with the words "homicide", "kill", "death", "destroy" and "mass murder" in them - The Ontario Court of Appeal affirmed that the writings were relevant to the identification of the accused and admissible to prove motive, regardless that they also tended to prove disposition i.e. that the accused was the sort of person likely to commit the offence - See paragraphs 15 to 23, 26 to 27.

Evidence - Topic 1667

Hearsay rule exceptions - Statements of mental condition - Statements of motive - The accused was charged with attempted murder of a stranger - Two or three years before, the accused remarked that "He would join the army so he could legally shoot people" - The Crown tendered evidence of the remark, plus writings about death and murder in the accused's possession, to show motive - The Ontario Court of Appeal held that, taken alone, evidence of the remark was inadmissible because of its slight weight in proportion to its prejudicial effect, and remoteness - It was admissible, however, to show continuity with the writings, where no miscarriage of justice resulted - See paragraphs 15, 24.

Cases Noticed:

R. v. Morris (1984), 48 N.R. 341; 36 C.R.(3d) 1; 7 C.C.C.(3d) 97, appld. [para. 21].

R. v. Jackson (1981), 57 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 25].

R. v. Burdick (1975), 27 C.C.C.(2d) 497, appld. [para. 32].

R. v. Cole (1980), 53 C.C.C.(2d) 269, appld. [para. 33].

Authors and Works Noticed:

Blackstone's Commentaries, vol. 4, p. 200 [para. 17].

Wigmore on Evidence (3rd Ed.), vol. 1, pp. 557-558 [para. 25].

Counsel:

James Lockyer, for the appellant;

Bonnie J. Wein, for the Crown, respondent.

This appeal was heard before Martin, Lacourcière and Goodman, JJ.A., of the Ontario Court of Appeal on February 9, 10 and 16, 1984. The decision of the Court of Appeal was delivered orally by Martin, J.A., and released on February 27, 1984.