Judgment of the Court
The judgment of the Court was delivered by
that the learned trial judge erred in law in that in his charge to the jury he failed to deal separately with the issues of fact and law which related to the guilt or innnocence of VINCENT MAZZA as distinguished from that of his co-accused, and
that he further erred in instructing the jury that there were only two verdicts for the jury to consider, but ought to have instructed the jury that they could acquit VINCENT MAZZA if they found FRANK RIZZUTO guilty, and
further erred in failing to instruct the jury as to the meaning and effect of s. 21 of the Criminal Code if they were to consider the threats and acts of violence of FRANK RIZZUTO as relevant to the guilt or innocence of VINCENT MAZZA,
The two additional grounds on which leave was given were formulated as follows:
That the learned trial Judge erred in law with respect to the issue of consent in failing to instruct the Jury that they must be satisfied beyond a reasonable doubt that the Appellant Mazza was aware that the Complainant was not consenting or that if she were consenting, she was doing so by reason of a consent which
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had been extorted by threats or by fear of bodily harm.
That the learned trial Judge erred in law in failing to instruct the Jury that evidence of an attempt to suppress evidence could only be capable of being corrobarative of the Complainant’s evidence with respect to the Appellant Mazza if the attempt was authorized or procured by the Appellant Mazza.
Footnotes
- [1] (1975), 24 C.C.C. (2d) 508.
- [2] [1975] 2 All E.R. 347.