Charged with the non-capital murder of her mother-in-law, the appellant was convicted of manslaughter. The medical evidence attributed the death to a blow or blows on the head. The only direct evidence to connect the appellant with the death consisted of an alleged confession made by her to her friend S, and of three statements she is alleged to have made to her friend K. During the three and a half years between the death and the trial, S gave several statements to the police and gave evidence under oath at the inquest, but each of her accounts differed as to her own activities on the night of the murder. It was not until three years after the night in question that she first told the police about the alleged confession. The accused was said to have been intoxicated when she made these statements. The Court of Appeal affirmed the conviction. The accused appealed to this Court.
Held (Abbott J. dissenting): The appeal should be allowed and a new trial directed on the charge of manslaughter.
Per Cartwright, Ritchie, Hall and Spence JJ.: The trial judge said enough to indicate that in weighing the evidence of K and S the jury should give serious consideration to the inconsistencies in the statements made by S and to the failure of both women to come forward with their stories at an earlier date. The theory of the defence that these two witnesses were unworthy of belief was expressed by the trial judge with sufficient clarity to comply with the authorities. Deacon v. R. [19471 S.C.R.
There was however a total absence of any direction on the question of whether, if the appellant did make the incriminating statements attributed to her by the two women, those statements were in fact true. The evidence of the appellant's intoxication was such as to make it desirable for the trial judge to tell the jury that it was a factor to be taken into consideration in assessing the value of her confession and statements as evidence against her. Assuming that the inconsistencies between the alleged confession and the autopsy as to how the victim met her death was not raised by way of defence, and notwithstanding the fact that defence counsel did not object to the trial judge's failure to comment on it, the charge to the jury should nevertheless have contained specific direction to the effect that the truth of the appellant's alleged admission was to be considered in light of this discrepancy and in light also of her intoxication at the time when the admission was alleged to have been made.
Per Abbott J., dissenting: The objections to the trial judge's charge made by the appellant did not, as found by the Court of Appeal, constitute sufficient grounds to allow the appeal.
* Cartwright, Abbott, Ritchie, Hall and Spence JJ. S.C.R.
[19651