R. v. Penney, (1977) 12 Nfld. & P.E.I.R. 118 (NFCA)

• Judge: Furlong, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: April 13, 1977
• Jurisdiction: Newfoundland and Labrador
• Citations: (1977), 12 Nfld. & P.E.I.R. 118 (NFCA)

R. v. Penney (1977), 12 Nfld. & P.E.I.R. 118 (NFCA);

    25 A.P.R. 118

MLB headnote and full text

R. v. Penney

Indexed As: R. v. Penney

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

April 13, 1977.

Summary:

This case arose out of a charge of murder against the accused. The accused was charged with the strangulation murder of the woman with whom he was living. The trial judge admitted into evidence as part of the res gestae statements made by the woman in the months before her death and on the night of her death that she intended to kill herself. However, the trial judge failed to instruct the jury on the limited use to which the statements could be put. The accused was acquitted. The Crown appealed.

The Newfoundland Court of Appeal allowed the appeal and ordered a new trial. The Court of Appeal held that it was error to admit the woman's statements made in the months prior to her death, since they were too remote in time to be part of the res gestae. The Court of Appeal held that the woman's statements on the night of her death were properly admitted as part of the res gestae. However, the Court of Appeal held that the trial judge committed reversible error in failing to instruct the jury on the limited use to which the statement could be put.

Criminal Law - Topic 4352

Procedure - Charge or directions to jury - Directions respecting evidence - The trial judge admitted into evidence statements by an alleged murder victim as part of the res gestae, but failed to instruct the jury on the limited use to which the evidence could be put - The Newfoundland Court of Appeal held that the failure of the trial judge to properly instruct the jury was reversible error - The Court of Appeal ordered a new trial - See paragraphs 12 to 16, 26, 28 to 30.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - What constitutes "a question of law alone" - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 605(1) - The Newfoundland Court of Appeal held that to admit inadmissible evidence and to submit to the jury a defence not supported by the evidence were errors of law on which the Crown could appeal from an acquittal under s. 605(1) of the Criminal Code - See paragraph 6.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds for - Misdirection by trial judge - Appeal by Crown from an acquittal - The trial judge in a murder trial admitted inadmissible evidence and failed to properly instruct the jury on how it should treat hearsay evidence admitted as part of the res gestae - The accused was acquitted and the Crown appealed - The Newfoundland Court of Appeal held that the failure to instruct the jury on the evidence constituted misdirection and was reversible error by the trial judge - The Newfoundland Court of Appeal ordered a new trial - See paragraphs 12 to 16, 26, 28 to 30.

Evidence - Topic 1500

Hearsay rule - Definition - The Newfoundland Court of Appeal set out the hearsay rule, its rationale and the duty of the trial judge in instructing the jury thereon - See paragraph 12.

Evidence - Topic 1722

Hearsay rule exceptions - Res gestae - Statements of victim - The accused was charged with the strangulation murder of the woman with whom he was living - The trial judge admitted into evidence as part of the res gestae statements of the woman made months before her death and on the night of her death that she intended to kill herself - The Newfoundland Court of Appeal held that it was error to admit the woman's statements in the months prior to her death, since they were too remote in time to be part of the res gestae - The Court of Appeal held that the woman's statements on the night of her death were properly admitted as part of the res gestae - See paragraphs 12 to 14, 25, 27.

Cases Noticed:

R. v. Vezeau, 8 N.R. 235; 28 C.C.C.(2d) 87, folld. [para. 7].

R. v. Baltzer, 10 N.S.R.(2d) 561; 27 C.C.C.(2d) 143, folld. [para. 12].

R. v. Christie, [1914] A.C. 545, appld. [para. 12].

R. v. Azoulay, [1952] 2 S.C.R. 495, appld. [para. 29].

R. v. Clayton-Wright, [1948] 2 All E.R. 763, appld. [para. 30].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 605(1) [para. 6].

Counsel:

John Byrne, for the appellant;

M. Francis O'Dea, for the respondent.

This case was heard on October 22, 1976, at St. John's, Newfoundland, before FURLONG, C.J.N, MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On April 13, 1977, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FURLONG, C.J.N. - see paragraphs 1 - 23.

MORGAN, J.A. - see paragraphs 24 - 26.

GUSHUE, J.A. - see paragraphs 27 - 31.