Supreme Court of Canada
Penney v. The Queen, [1979] 2 S.C.R. 1014
Date: 1979-11-21
Allan Richard Penney Appellant;
and
Her Majesty The Queen Respondent.
1979: November 21.
Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Chouinard JJ.
ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND, APPEAL DIVISION
Criminal law—Murder—Admissibility of evidence—Hearsay—Statements made by the deceased—Statements not part of res gestae—Duty of trial judge—Adequacy of charge.
APPEAL from a judgment of the Supreme Court of Newfoundland, Appeal Division, allowing an appeal from a judgment of Mahoney J. with a jury and ordering a new trial. Appeal dismissed.
M. Francis O’Dea and J. Burke, for the appellant.
John P. Byrne, for the respondent.
The judgment of the Court was delivered orally by
MARTLAND J.—The submissions made by counsel for the appellant have not persuaded us to reverse the judgment of the Court of Appeal. The charge to the jury in this case was wholly unsatisfactory for the reasons given by Gushue J.A., in the Court of Appeal.
Some comment should be made regarding the admissibility of the evidence of the appellant as to the threats which the appellant says were made by the deceased to commit suicide by taking an overdose of sleeping pills. The appellant testifies that these threats were made in December 1974, February 1975, on another unspecified date, and on the date of her death, October 21, 1975. We agree with the Court of Appeal that evidence regarding the alleged threat made on the date of the death of the deceased was admissible. However, the trial judge had a duty to warn the jury as to the risk involved in accepting this evidence when given by the accused. The three alleged threats made earlier
[Page 1015]
were not a part of the res gestae, and, in relation to the circumstances of this case, the mental condition of the deceased at the time when they were said to have been made was not an issue before the Court.
The appeal is dismissed.
Appeal dismissed.
Solicitor for the appellant: M. Francis O’Dea, St. Johns.
Solicitor for the respondent: John P. Byrne, St. Johns.
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