R. v. Merdsoy (B.), (1994) 121 Nfld. & P.E.I.R. 181 (NFCA)

JudgeGoodridge, C.J.N., Marshall and Steele, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateJuly 29, 1994
JurisdictionNewfoundland and Labrador
Citations(1994), 121 Nfld. & P.E.I.R. 181 (NFCA)

R. v. Merdsoy (B.) (1994), 121 Nfld. & P.E.I.R. 181 (NFCA);

    377 A.P.R. 181

MLB headnote and full text

Bora Ruhi Merdsoy (appellant) v. Her Majesty The Queen (respondent)

(1992 No. 110)

Indexed As: R. v. Merdsoy (B.)

Newfoundland Supreme Court

Court of Appeal

Goodridge, C.J.N., Marshall and Steele, JJ.A.

July 29, 1994.

Summary:

An accused, charged with six counts of sexual assault, was convicted by judge and jury on two counts and sentenced to 10 months' imprisonment. The accused appealed the conviction and sought leave to appeal the sentence.

The Newfoundland Supreme Court, Court of Appeal, allowed the appeal, quashed the convictions and ordered a new trial for the two charges.

For related proceedings involving the same accused see 99 Nfld. & P.E.I.R. 85; 315 A.P.R. 85.

Criminal Law - Topic 4211

Procedure - General - Right to be heard - [See Criminal Law - Topic 4302.1 ].

Criminal Law - Topic 4302.1

Procedure - Trial judge - Duties and functions of - Respecting adjournments - An accused, charged with six counts of sexual assault and convicted on two, appealed - Each count involved different evidence - Defence counsel interviewed witnesses over a long weekend - Counsel did not know that the trial would end on Tuesday, the first day after the long week­end - The defence requested a ½ day adjournment before addressing the jury - After con­sidering the convenience of trial schedul­ing and completion and his prep­aration time, the trial judge allowed coun­sel a lunch hour to prepare - The New­foundland Court of Appeal concluded that the trial judge failed to exercise his discre­tion judicially - The court stated that the judge should have addressed the impera­tive of allowing an opportunity for a full answer and defence - See paragraphs 33 to 51.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - An accused charged with six counts of sexual assault was convicted by judge and jury on two counts - The trial judge did not instruct the jury that their decision should be registered according to whether they believed a complainant or the accused, but that if they had a reasonable doubt in respect of any complainant they were to acquit the accused - The New­foundland Court of Appeal reviewed and affirmed the judge's instructions - See paragraphs 52 to 65.

Criminal Law - Topic 4352.1

Procedure - Jury charge - Directions regarding similar fact evidence - The Newfoundland Court of Appeal held that a trial judge should instruct a jury to disre­gard similar fact evidence provided by a complainant when the accused is acquitted of the charge involving that complainant - See paragraphs 103 to 110.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4397 ].

Criminal Law - Topic 4377

Procedure - Jury charge - Directions regarding credibility of witnesses - The Newfoundland Court of Appeal stated that "[w]hile a judge undoubtedly has the right to express his views on the facts and the credibility of witnesses to the jury, it is a right to be exercised infrequently and with great caution and always with the advice to the jurors that they, under our legal system, are the judges of the facts and ought not in any way feel that they must agree with the comments or conclusions on the evidence put to them by the trial judge." - See paragraph 93 - The court further stated that an "... expression of an opinion by the trial judge suggesting that the accused person is guilty may be a ground for a new trial." - See paragraph 95.

Criminal Law - Topic 4379

Procedure - Jury charge - Directions regarding credibility of accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4387

Procedure - Jury charge - Comment by judge on facts - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 4393

Procedure - Jury charge - Failure by counsel to object - Effect of - The New­foundland Court of Appeal stated that "[c]ounsel will not have had an opportu­nity to review a judge's charge in advance and cannot be expected to advance coher­ent objections to it in the few moments that elapse between the completion of the charge and the time when the jury leaves the courtroom. If the judge made an erro­neous charge to the jury, the failure to object to it at the time cannot operate as a waiver of the right to raise errors on appeal." - See paragraph 55.

Criminal Law - Topic 4397

Procedure - Jury charge - Directions re matters not raised by counsel - An accused charged with six counts of sexual assault was convicted on two counts - The trial judge erroneously ref­used an adjourn­ment for defence counsel to prepare the jury address - The judge failed to put before the jury the theories of the defence, advanced his own theory and failed to instruct the jury to disregard similar fact evidence of a complainant if the accused was acquitted on the charge involving that complainant - The New­foundland Court of Appeal allowed the accused's appeal, where it was unable to conclude that there was no substantial wrong or miscarriage of justice.

Criminal Law - Topic 4399.8

Procedure - Jury charge - Directions re role of judge and jury - [See Criminal Law - Topic 4377 ].

Cases Noticed:

Sharpe v. Wakefield, [1891] A.C. 173 (H.L.), consd. [para. 38].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321; 29 C.C.C.(2d) 189, consd. [para. 39].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, consd. [para. 59].

Azoulay v. R., [1952] 2 S.C.R. 495; 104 C.C.C. 97, refd to. [para. 83].

Kelsey v. R., [1953] 1 S.C.R. 220, consd. [para. 83].

R. v. English (E.) (1993), 111 Nfld. & P.E.I.R. 323; 348 A.P.R. 323; 84 C.C.C.(3d) 511 (Nfld. C.A.), consd. [para. 88].

R. v. Boulet, [1978] 1 S.C.R. 332; 15 N.R. 541; 34 C.C.C.(2d) 397, consd. [para. 88].

R. v. Aflalo; R. v. Roy (1991), 40 Q.A.C. 161; 69 C.C.C.(3d) 230 (C.A.), consd. [para. 94].

R. v. Pouliot (1992), 47 Q.A.C. 1; 74 C.C.C.(3d) 428 (C.A.), revd. [1993] 1 S.C.R. 456; 150 N.R. 146; 54 Q.A.C. 1, consd. [para. 95].

Director of Public Prosecutions v. Kil­bourne, [1973] 1 All E.R. 440; [1973] A.C. 729 (H.L.), consd. [para. 106].

R. v. Cullen (1989), 36 O.A.C. 195; 52 C.C.C.(3d) 459 (C.A.), consd. [para. 110].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 645(1), sect. 645(2) [para. 36]; sect. 650(3) [paras. 37, 48].

Authors and Works Noticed:

Annual Practice (1966), p. 1653 [para. 41].

McWilliams, Peter K., Canadian Criminal Evidence (1974), generally [para. 105].

Counsel:

Gerald O'Brien, Q.C., for the appellant;

Wayne Gorman, for the respondent.

This appeal was heard on May 30, 1994, before Goodridge, C.J.N., Marshall and Steele, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On July 29, 1994, Goodridge, C.J.N., delivered the judgment for the Court of Appeal, which was filed on the same date.

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