Bleta v. R., [1964] SCR 561

Supreme Court of Canada

Bleta v. R., [1964] S.C.R. 561

Date: 1964-06-11

Karafil Bleta (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1964: April 30; 1964: May 1; 1964: June 11.

Present: Cartwright, Fauteux, Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Non-capital murder—Expert evidence—Defence of automation following brain injury—Psychiatrist expressing opinion based on evidence of other witnesses—Whether evidence of psychiatrist admissible.

The appellant was acquitted on a charge of non-capital murder. In the course of a fight with the victim, the appellant was knocked down or fell down and his head struck the pavement. The victim had started to walk away when the appellant, having regained his feet, followed

[Page 562]

him and stabbed him fatally with a knife. Some of the witnesses observed that when the appellant got up he staggered and appeared to be dazed. The appellant advanced the defence of automation. This defence was supported by a psychiatrist who had not examined the appellant until more than three months after the incident but who had attended his trial and listened to all the evidence as to the appellant’s head injury and his behaviour immediately after receiving it. The expert was not asked hypothetical questions but on the contrary was invited to express his opinion based on the evidence which he had heard. The Court of Appeal ordered a new trial on the ground that this evidence was inadmissible and should not have been accepted by the trial judge even though no objections were taken by the Crown at the trial. The accused appealed to this Court.

Held: The appeal should be allowed and the verdict of acquittal restored.

Provided that the questions are so phrased as to make clear what the evidence is on which an expert is being asked to found his conclusion, the failure to put such questions in hypothetical form does not of itself make the answers inadmissible. It is within the competence of the trial judge in any case to insist upon the foundation for the expert’s opinion being laid by way of hypothetical question if he feels this to be the best way in which he can be assured of the matter being fully understood by the jury, but this does not mean that the judge is necessarily precluded from permitting the expert’s answer to go before the jury if the nature and foundation of his opinion have been clearly indicated by other means. In the present case there was no difficulty in concluding that the psychiatrist was proceeding on the hypothesis that the appellant’s blow on the head and his conduct after receiving it were as described by the uncontradicted evidence of the Crown witnesses, and that his condition as to amnesia, headaches and other symptoms was the condition which the appellant himself described. Where the evidence is open to the construction that the premises upon which the expert’s opinion is based were clearly presented to the jury, a Court of Appeal should be hesitant to interfere with the ruling made by the trial judge as to the admissibility of that opinion. All those concerned with the conduct of this trial were satisfied that a proper basis had been laid for the admission of the doctor’s opinion. Under these circumstances a Court of Appeal should, before excluding an expert’s opinion, be able to make a clear finding that there was no material before the jury to enable it to determine whether his conclusions were properly founded or not. Such a finding was not justified in the present case. The trial judge was justified in proceeding on the assumption that the hypothesis on which the psychiatrist based his opinion had been made clear to the jury and he was accordingly justified in admitting the evidence of that opinion and commenting on it as he did.

APPEAL from a judgment of the Court of Appeal for Ontario[1], setting aside a verdict of acquittal on a charge of non-capital murder and ordering a new trial. Appeal allowed.

A. Maloney, Q.C., for the appellant,

W.C. Bowman, Q.C, for the respondent.

[Page 563]

The judgment of the Court was delivered by

RITCHIE J.:—This is an appeal brought pursuant to s. 597 (2) of the Criminal Code from a judgment of the Court of Appeal for Ontario¹ setting aside the verdict of a jury which had acquitted the present appellant of the non-capital murder of one Hairedin Gafi and directing that there be a new trial on the ground that certain evidence given by a psychiatrist who was called by the defence was inadmissible and that the trial judge was in error in accepting it and dealing with it as he did.

At the trial a number of Crown witnesses testified that they were present on Dundas Street in the City of Toronto on the afternoon of June 6, 1963, and there watched the course of a fight between Gafi and the appellant which culminated in the appellant stabbing Gafi fatally in the neck. Although the stories of the eye witnesses differ as to the details of the affray, it is clear that blows were exchanged between the two men, that the appellant was knocked down or fell down striking his head forcibly on the pavement and that Gafi had started to walk away when the appellant, having regained his feet, followed him and pulled out a knife with which he delivered the fatal blow. Two of the onlookers observed that when the appellant got up he staggered and appeared to be dazed, and one police officer also commented on his apparently dazed condition, but the other witnesses to the fight made no observation in this regard.

The defence advanced at the trial on behalf of the appellant was that the blows to his head sustained when it struck the sidewalk had the effect of depriving him of all voluntary control over his actions so that he acted as an automaton for a period which included the time when he stabbed Gafi, and that he was therefore not legally responsible for his actions at that time. This defence was supported by the evidence of Dr. Ronald Stokes, a psychiatrist and an Assistant to the Director of the Forensic Clinic at the Toronto Psychiatric Hospital, who had not examined the appellant until more than three months after the incident but who had attended his trial and listened to all the evidence as to the appellant’s head injury and his behaviour immediately after receiving it.

The reasons for the Court of Appeal rejecting this evidence as inadmissible are well summarized in the decision

[Page 564]

rendered on behalf of that Court by Porter C.J.O. in which he said:

Counsel for the accused did not follow the established practice of putting to the expert witness a hypothetical question upon which he could properly base an expert opinion, but asked the expert questions concerning his view of evidence given by witnesses. Dr. Stokes, in fact was improperly permitted to express an opinion based on his own assessment of the evidence. No objections were taken by counsel for the Crown to this evidence, and the trial judge raised no objections, and admitted the evidence without question or argument. In his charge the trial judge discussed this evidence and treated it as if it had been properly admitted, and suggested that the jury should give it a good deal of consideration. Indeed, the evidence of Dr. Stokes was the only evidence that in any way touched upon the subject of automation.

and he continued:

…I am of the opinion that the evidence as presented by Dr. Stokes was inadmissible and the learned trial judge was in error in accepting it and dealing with it in his charge in the way that he did.

The question of whether or not an accused person was in a state of automatism so as not to be legally responsible at the time when he committed the acts with which he is charged, is a question of fact, and indeed may be the most vital question of fact in a criminal case, and it is because the opinion of an expert witness on such a question can serve only to confuse the issue unless the proven facts upon which it is based have been clearly indicated to the jury that the practice has grown up of requiring counsel, when seeking such an opinion, to state those facts in the form of a hypothetical question. In cases where the expert has been present throughout the trial and there is conflict between the witnesses, it is obviously unsatisfactory to ask him to express an opinion based upon the evidence which he has heard because the answer to such a question involves the expert in having to resolve the conflict in accordance with his own view of the credibility of the witnesses and the jury has no way of knowing upon what evidence he based his opinion. Where, however, there is no conflict in the evidence, the same difficulty does not necessarily arise and different considerations may therefore apply.

In M’Naghten’s Case[2], certain questions were put by the House of Lords to the judges of England and amongst these was the following:

Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the

[Page 565]

whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to the law, or whether he was labouring under any and what delusion at the time?

This question, which appears to me to be singularly apt to the present circumstances, was answered by Tindal C.J., as follows:

In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.

In answer to the same question, Mr. Justice Maule, who expressed a separate opinion, indicated what in my view is the true reason for excluding such a question when he said:

Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence; it is to be considered whether that is enough to sustain the question. In principle it is open to this objection, that as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts as makes it irrelevant to the inquiry.

In Regina v. Francis[3], the very question which had been asked of the judges in the M’Naghten Case was considered by Baron Alderson and Cresswell J. Baron Alderson was of opinion that the question should not be put at all and that the decision in M’Naghton’s Case was wrong; but Cresswell J., although apparently concurring in the result, is reported to have observed that the answer in M’Naghten’s Case went no further than deciding “that the question could not be put as a matter of right”. This latter view appears to be shared by leading text writers. (See Phipson on Evidence, 10th ed., para. 1298, and Glanville Williams, Criminal Law, 2nd ed., para. 149, Note 3 at page 452.

The case of R. v. Holmes,[4] is illustrative of the fact that the opinion of experts on the very question at issue can be elicited without the aid of a hypothetical question if the

[Page 566]

basis for the opinion is made apparent to the jury. In that case the expert who had examined the accused before the trial was questioned as to his opinion based on his behaviour after the alleged murder had been committed. The manner in which the evidence was introduced and the opinion of the Court of Criminal Appeal in England are well described in the reasons for judgment of Lord Goddard C.J., at page 324 where he said:

In the present case the appellant, after a savage attack on the murdered person, went to a police station, gave himself up, said he was giving himself up for murder, and gave a detailed account of what he had done and how he had done it. A medical witness who was called for the defence, was asked in cross-examination:

You remember that I asked you the question whether the accused’s conduct immediately after this incident would indicate to you that he knew the nature of the act that he was committing and your reply was ‘Yes’. That is so, is it not? A.—Yes. Q.—Would his conduct immediately after indicate equally that he knew his conduct was contrary to the law of the land. A.—Yes.

Counsel for the appellant has submitted that those questions were inadmissible. Whatever fine distinctions may have been drawn in days before or soon after M’Naghten’s Case, we can only say that no member of the court has ever heard an objection being taken to such questions as those. Moreover, if the objection prevailed, it would, as it seems to us, put an insuperable difficulty in the way of the defence whenever they were trying to establish insanity. For instance, if a medical witness could not be asked whether the defendant’s conduct immediately after the act in respect of which he was charged indicated that he knew his conduct was contrary to the law of the land, the doctor being prepared to answer “No”, it would be a great hardship on the defendant who was setting up a plea of insanity if the doctor was not to be allowed to answer that question. It seems to the court that that is essentially a question that may be asked and answered.

In commenting on what he described as “the orthodox and accepted theory of the hypothetical question in our law”, the learned editor of Wigmore on Evidence, 3rd ed., summarized the matter in para. 672 at page 793 in the following language:

The key to the situation, in short, is that there may be two distinct subjects of testimony,—premises, and inferences or conclusions; that the latter involves necessarily a consideration of the former; and that the tribunal must be furnished with the means of rejecting the latter if upon consultation they determine to reject the former, i.e. of distinguishing conclusions properly founded from conclusions improperly founded.

Provided that the questions are so phrased as to make clear what the evidence is on which an expert is being asked to found his conclusion, the failure of counsel to put such

[Page 567]

questions in hypothetical form does not of itself make the answers inadmissible. It is within the competence of the trial judge in any case to insist upon the foundation for the expert opinion being laid by way of hypothetical question if he feels this to be the best way in which he can be assured of the matter being fully understood by the jury, but this does not, in my opinion, mean that the judge is necessarily precluded in the exercise of his discretion in the conduct of the trial from permitting the expert’s answer to go before the jury if the nature and foundation of his opinion has been clearly indicated by other means.

In the present case there does not appear to me to be any difficulty in concluding that in giving his opinion Dr. Stokes was proceeding on the hypothesis that the appellant’s blow on the head and his conduct after receiving it were as described by the uncontradicted evidence of Crown witnesses, and that his condition as to amnesia, headaches and other symptoms was the condition which he himself described.

As he was required to do, the learned trial judge made it clear to the jury that they were not bound to accept the evidence upon which the doctor based his opinion or the opinion itself when he said: “You may accept or reject the evidence of any witness in whole or in part and that applies to the experts—in this case the doctor—as it does to all other evidence”.

If the jury disbelieved Bleta’s story of amnesia and headaches, it would undoubtedly affect the weight which they attached to Dr. Stokes’ evidence, but the possibility of this happening does not, in my view, in any way affect the admissibility of that evidence.

In the same way the evidence of Dr. Golab, who saw the appellant some five and a half hours after the fight and pronounced him to be then quite normal and well-oriented, might well have been viewed as substantially weakening the force of Dr. Stokes’ opinion, based as it was in such a large degree upon hypotheses rather than personal examination, but this would reflect on the reliability rather than the admissibility of the Stokes evidence.

As has been indicated, the decision as to whether a sufficient basis has been laid for the admission of an expert opinion rests in each case in the discretion of the trial judge, the exercise of which is dependant upon many factors, all

[Page 568]

of which may not be fully appreciated by a court of appeal which is confined to the printed record of the proceedings in its reconstruction of the atmosphere existing at the trial. For this reason, in cases where the evidence is open to the construction that the premises upon which the expert opinion is based were clearly presented to the jury, a court of appeal should, in my opinion, be hesitant to interfere with the ruling made by the trial judge as to the admissibility of that opinion. It is particularly noteworthy that in the present case Crown counsel not only took no objection to the admissibility of the evidence, but without framing a hypothetical question of any kind himself, elicited a much more detailed opinion from the doctor than had theretofore been given as to the nature of the appellant’s injury. This appears to me to be clear confirmation of the fact that all those concerned with the conduct of the trial who saw and heard the witnesses were satisfied that a proper basis had been laid for the admission of the doctor’s opinion. Under these circumstances it seems to me that, before excluding an expert’s opinion, a court of appeal should be able to make a clear finding that there was no material before the jury to enable it to determine whether his conclusions were properly founded or not. I do not, with respect, consider that such a finding is justified in the present case.

In instructing the jury the learned trial judge, as I have pointed out, told them that they were free to reject the evidence of the doctor in whole or in part, he indicated to them that the doctor’s opinion was based on the evidence of the appellant’s amnesia and the blow to his head, he reviewed the evidence as to his staggering and dazed condition and concluded by saying:

On the issue of automatism I come now to the important evidence of Dr. Ronald Stokes. He is an experienced psychologist, he examined the accused and heard all of the important evidence at this trial. His evidence is not contradicted and while you may still refuse to accept it you should most certainly give it a good deal of consideration. The considered opinion of Dr. Stokes in this case is that the accused was so affected by the blow on the head that he suffered a brain injury temporary in nature but which caused amnesia, which is a loss of memory, and which in turn makes it impossible for him to give anyone an accurate account of what happened although he may attempt to do so, as he did.

Later in his charge, the learned trial judge continued:

…the doctor says that the actions of the accused when he stabbed the deceased were purely automatic and without any volition on the part

[Page 569]

of the accused. He was, in fact, in the condition of a sleep walker or an epileptic. During this seizure, and since he had been in a fight, he automatically continued it. If you accept that evidence, then as I have told you, the law is that the accused is not guilty of anything.

Dr. Stokes considered all of the circumstances and the actions of the accused both before and after his arrest and gives as his opinion, and without doubt on his part, that this is a true case of automatism. It is for you to decide whether the evidence of Dr. Stokes should be accepted or rejected.

With the greatest respect for the views expressed by The Court of Appeal for Ontario, I am of the opinion that the learned trial judge was justified in proceeding on the assumption that the hypothesis on which Dr. Stokes based his opinion had been made clear to the jury and that he was accordingly also justified in admitting the evidence of that opinion and commenting on it as he did.

In view of this conclusion, it is unnecessary for me to consider the other points raised in support of this appeal.

I would allow the appeal and restore the verdict of the jury acquitting the accused and the order of the learned trial judge made pursuant thereto.

Appeal allowed and verdict of acquittal restored.

Solicitors for the appellant: Moloney & Hees, Toronto.

Solicitor for the respondent: W.C. Bowman, Toronto.