R. v. Murphy (A.), 2012 ONCA 573

• Judge: Laskin, Rosenberg and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 05, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 573;(2012), 295 O.A.C. 281 (CA)

R. v. Murphy (A.) (2012), 295 O.A.C. 281 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. SE.013

Her Majesty the Queen (respondent) v. Andrew Murphy (appellant)

(C52369; 2012 ONCA 573)

Indexed As: R. v. Murphy (A.)

Ontario Court of Appeal

Laskin, Rosenberg and Watt, JJ.A.

September 5, 2012.

Summary:

The accused was convicted by a jury of a firearms and drug offences. He was sentenced to imprisonment for six years and five months, less 52 months' credit for pre-trial custody. The accused appealed on the ground that the trial judge erred in refusing to allow him to call a witness who was expected to admit culpability for the offences charged.

The Ontario Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another - The accused was convicted by a jury of a firearms and drug offences - The trial judge refused to allow the accused to call a witness who was expected to testify that the gun and narcotics found in the residence belonged to him, not the accused - The judge ruled the evidence inadmissible because "there is no evidence linking the third party suspect to the crime" - The Ontario Court of Appeal held that the judge erred in not permitting the witness to testify - The convictions were set aside and a new trial was ordered - The court stated that "the defence has always been permitted to call or adduce evidence that some other person committed the crime with which the accused has been charged. However, before this third party or alternate suspect evidence can be admitted, the accused bears the onus of showing that the proposed evidence has 'some nexus with the alleged offence'. Without the nexus, the evidence would lack probative value. ... I accept the Crown's submission that the requirement to show some nexus or connection between the third party and the offences applies whether the proposed evidence is direct or circumstantial or a combination of both. In all cases, the connection gives the proposed evidence its probative value. ... However, where the defence proposes to call direct evidence from another person taking responsibility for the crimes charged, that proposed evidence itself constitutes a sufficient nexus or connection. Nothing more need be shown and no formal application is necessary." - See paragraphs 19, 24, 25.

Cases Noticed:

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 17].

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233; 18 C.R.(5th) 219; 129 C.C.C.(3d) 1 (C.A.), refd to. [para. 18].

R. v. McMillan (1975), 7 O.R.(2d) 759 (C.A.), refd to. [para. 19].

R. v. Grandinetti (C.H.) (2005), 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 19].

R. v. Candir (E.) (2009), 257 O.A.C. 119; 2009 ONCA 915, refd to. [para. 24].

Counsel:

Dirk Derstine and Mariya Yakusheva, for the appellant;

Rick Visca, for the respondent.

This appeal was heard on April 23, 2012, before Laskin, Rosenberg and Watt, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Laskin, J.A., and released on September 5, 2012.