Summary

Keywords

Criminal law — Evidence — Admissibility — Whether the Court of Appeal erred in law in holding that the exculpatory portions of the respondent’s mixed statements were admissible for the truth of their contents, notwithstanding that the respondent had testified to the same effect —Whether the trial judge, in her final charge to the jury, committed a reversible error in failing to instruct the jury that the exculpatory portions of the respondent’s mixed statements, which were consistent with his testimony in court, were available to be considered by the jury as independent evidence of the truth of their contents.

Summary

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The respondent and his friends left a nightclub around closing time, and they encountered a group of men they did not know. The two groups got into an argument. The argument turned into a fight. Mr. Cellucci died and Mr. DeAngelis was seriously injured. At trial, the Crown introduced statements that the respondent made to his friends shortly after the incident. On appeal, the Crown acknowledges that those statements could be interpreted as admitting that he stabbed the victims. However, in these statements the respondent also stated he had acted in defence of his friend Mr. MacDonald (the “mixed statements”). When the statements were admitted, the trial judge instructed the jury that they could rely on the respondent’s out-of-court statements, including their exculpatory aspect, in deciding the case. The respondent testified. His evidence was consistent with the mixed statements that had been led by the Crown: he had stabbed the victims in defence of Mr. MacDonald. In her final charge, the trial judge instructed the jury that the exculpatory aspect of the respondent’s out-of-court statements could not be used for their truth, but that they could have “a bearing on [the respondent’s] credibility” and were circumstantial evidence that could be considered as to the respondent’s state of mind. The respondent was convicted of second degree murder and aggravated assault. The Court of Appeal allowed the appeal and ordered a new trial.

Lower Court Rulings