Hyperlawhypertext legal database McFall v. The Queen [1980] 1 SCR 321

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McFall v. The Queen

[1980] 1 SCR 321 Court scc Decision date 1979-06-28 English

PartiesAllwyn George McFall Appellant·Her Majesty The Queen Respondent

Judges Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves

Delivered by Majority

On appeal from Manitoba

Subjects Criminal law

Contents

The learned trial judge erred in inviting the jury to compare and contrast the confessions of the appellant with the confessions of his co-accused, to test the validity of the confessions of the appellant.

The learned trial judge erred in inviting the jury to consider the statements of the appellant’s co-accused, which were inadmissible as against [Page 324] the appellant, in considering the credibility of the appellant.

The learned trial judge erred in permitting the appellant to be asked, during his cross‑examination, to comment on the veracity of his co-accused in connection with their confessions and to comment on the veracity of other witnesses.

The learned trial judge erred in failing to instruct the jury that, where two or more persons conspire together to commit robbery and to use violence in the course of the robbery, and death results from the use of violence by one or more of the co-conspirator(s), a conspirator is guilty of murder only if the bodily harm that resulted in death was of a type that was within the scope of the common enterprise.

The learned trial judge erred in refusing a motion for the severance of the trials.

The learned trial judge erred in failing to rule inadmissible the extra-judicial statement made by the accused, McFall.

The learned trial Judge erred in excluding from the jury the theory of the defence of the appellant, that the deceased was a homosexual and that the deceased had invited one of the co-accused to his room to engage in homosexual activity, for which the co-accused was to be paid.

The learned trial Judge erred in failing to instruct the jury properly on the meaning of the word “steal” in the criminal law.

The learned trial Judge erred in failing to instruct the jury properly on the meaning of the word “wilfully.”

The learned trial Judge erred in admitting evidence of appellant’s previous bad character in the form of a conversation relating to appellant’s previous dealings with homosexuals.

The learned trial judge erred in failing to instruct the jury that they could believe the [Page 325] accused guilty of some crime other than murder or manslaughter, such as aggravated assault.

The Section 613(1)(b)(iii) of the Criminal Code should not be applied in order to dismiss the appeal.

Footnotes

  1. [1] [1976] 6 W.W.R. 239, 31 C.C.C. (2d) 81.
  2. [2] [1945] S.C.R. 438.
  3. [3] (1968), 391 U.S. 123.
  4. [4] [1927] S.C.R. 633.
  5. [5] [1928] S.C.R. 553.
  6. [6] [1951] S.C.R. 115.
  7. [7] [1962] S.C.R. 371.
  8. [8] [1965] S.C.R. 739.
  9. [9] [1942] S.C.R. 80.
  10. [10] [1951] S.C.R. 248.
  11. [11] [1959] S.C.R. 369.
  12. [12] Since reported [1979] 2 S.C.R. 881.
  13. [13] [1970] S.C.R. 638.

Statutes and regulations cited