R. v. Smith (G.A.), (1989) 74 Sask.R. 266 (CA)

• Judge: Cameron, Vancise and Gerwing, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 01, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 74 Sask.R. 266 (CA)

R. v. Smith (G.A.) (1989), 74 Sask.R. 266 (CA)

MLB headnote and full text

R. v. George Anthony Smith

(No. 4004)

Indexed As: R. v. Smith (G.A.)

Saskatchewan Court of Appeal

Cameron, Vancise and Gerwing, JJ.A.

June 1, 1989.

Summary:

The accused was convicted by a judge and jury of armed robbery and having possession of a stolen automobile. He was sentenced to 4.5 years' imprisonment. He appealed from conviction and sentence.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 2854.1

Jurisdiction - Consent jurisdiction - Election and re-election - Re-election by accused - Where count added to indictment - The accused was charged with robbery and elected trial by jury - After the preliminary inquiry the Crown added a charge of possession of a stolen vehicle to the indictment - The accused was not put to his election on the added count - The Saskatchewan Court of Appeal held that the accused's initial election extended to the added count and he was not entitled to re-elect on the added count - See paragraphs 31 to 40.

Criminal Law - Topic 4274

Procedure - Indictment - Amendment - Adding counts disclosed by evidence taken at preliminary inquiry - [See Criminal Law - Topic 2854.1 above].

Criminal Law - Topic 5435

Evidence and witnesses - Cross-examination of accused - Credibility - The Crown cross-examined the accused on his association with prostitutes, escaping custody, girlfriends and illegal experience with guns - The questions followed up what he had said on direct examination and were directed to his credibility - The Saskatchewan Court of Appeal held that the cross-examination was proper notwithstanding that it incidentally went to his character, because it went to credibility and merely followed up his direct examination - Further, the answers could have helped him and his submission on appeal was hurt by his failure to object to the cross-examination of trial - See paragraphs 15 to 30.

Criminal Law - Topic 5436

Evidence and witnesses - Cross-examination of accused - Character of accused - [See Criminal Law - Topic 5435 above].

Criminal Law - Topic 5855

Sentence - Robbery - The accused robbed a jewellery store using an unloaded handgun - Many prior convictions for serious offences - He was charged in one indictment with armed robbery and possession of a stolen automobile - The Saskatchewan Court of Appeal affirmed a sentence of 4.5 years' imprisonment - See paragraphs 1, 42.

Criminal Law - Topic 5862

Sentence - Possession of stolen goods - [See Criminal Law - Topic 5855 above].

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - The Saskatchewan Court of Appeal stated that the failure of the accused to object to the questions on his cross-examination at trial, while not conclusive, impaired his challenge to the questions on appeal - See paragraphs 29.

Cases Noticed:

R. v. Bird (1974), 13 C.C.C.(2d) 73 (Sask. C.A.), consd. [para. 19].

R. v. Hartridge (1966), 56 W.W.R.(N.S.) 385, refd. to. [para. 26].

R. v. Wong Smith, [1928] 3 W.W.R. 493 (Sask. C.A.), appld. [para. 33].

R. v. Duff, [1928] 3 W.W.R. 550, appld. [para. 33].

R. v. Tychkowsky (1980), 27 A.R. 394; 14 Alta. L.R.(2d) 129 (Q.B.), appld. [para. 36].

R. v. Wilson (1977), 35 C.C.C.(2d) 414, affd. 41 C.C.C.(2d) 288 (Alta. C.A.), appld. [para. 36].

R. v. Atkinson (1981), 33 N.B.R.(2d) 137; 80 A.P.R. 137, appld. [para. 37].

R. v. Morrisette (1970), 1 C.C.C.(2d) 307; 12 C.R.N.S. 392; 75 W.W.R.(N.S.) 644, appld. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 574(1)(b) [para. 33].

Counsel:

C. Seto, for the appellant accused;

D.M. Brown, for the respondent Crown.

This case was heard before Cameron, Vancise and Gerwing, JJ.A., of the Saskatchewan Court of Appeal.

On June 1, 1989, Cameron, J.A., delivered the following judgment for the Court of Appeal: