Demeter v. R.

Sequestration of the Jury.

At the commencement of the trial application was made on behalf of the appellant that the jury be sequestered. This application was refused. Similar applications were made during the course of the trial on a number of occasions. They were unsuccessful. Subsequently the trial judge, on his own motion, ordered that the jury be sequestered.

The relevant provision of the Criminal Code is s. 576(1):

The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.

The trial judge exercised this discretion by permitting the jury to separate, until the time when he decided no longer to permit them to do so. His failure to sequester the jury at the commencement of the trial was raised as a ground of appeal before the Court of Appeal and was rejected.

In my opinion the decision of the trial judge on this question was not a decision on a question of law. If the Court of Appeal had considered that this decision by the trial judge had resulted in a miscarriage of justice, it would have had the power to deal with the matter under s. 613(1)(a)(i) of the Criminal Code, but the Court did not so find. On an appeal to this Court under s. 618(1)(b) the Court is limited to the consideration of “any question of law”. In my opinion the decision of the trial judge as to sequestration of the jury was not on a question of law, and the judgment of the Court of Appeal confirming that decision does not raise a question of law. This Court is, therefore, without jurisdiction to consider that issue. The fact that leave to appeal was granted in respect of this question does not preclude the Court from reaching this conclusion. (R. v. Warner[2]).

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Refusal to admit the confession of the deceased Eper.

The facts giving rise to this issue are as follows. The case for the Crown was that the appellant had procured some unknown person to kill the appellant’s wife. The appellant sought to introduce evidence through the witness Dinardo that one Eper, who was apparently unconnected with the appellant, had confessed to the murder of the appellant’s wife. Eper was an escaped convict, who had been serving a sentence for life at the time of his escape, and who had died prior to the trial. Dinardo was his friend and testified that he would not have given evidence implicating Eper in the murder if Eper had still been alive. The trial judge excluded the alleged confession as being hearsay evidence.

The submission of counsel for the appellant is that this evidence was admissible by reason of the exception to the hearsay rule in respect of declarations against interest. The Court of Appeal defined the issue thus raised in the following passage from its judgment:

At common law an oral or written declaration against pecuniary or proprietary interest by a deceased declarant has been long held to be admissible to prove the fact declared. In excluding that part of Dinardo’s evidence the learned trial Judge followed The Sussex Peerage (1844), 11 CI. & Fin. 85, 8 E.R. 1034, where it was laid down by the House of Lords that a declaration against penal interest is not admissible. The appellant argued that this Court should not follow The Sussex Peerage and should follow some earlier English decisions of Courts lower than the House of Lords where declarations against penal interest had been held to be admissible. Alternatively, the appellant argued that the declarations in question were admissible as against pecuniary interest on the basis that admission of the killing subjected Eper to a possible action under the Fatal Accidents Act.

All that has usefully been said to date in denial or support of the appellant’s first contention can be found by referring, on the one hand, to The Sussex Peerage and the very thoughtful and learned judgment of the South Australia Supreme Court in Frits van Beelen (1974), 9 S.A.S.R. 163, and, on the other hand, to

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Wigmore on Evidence, 3rd ed. (1974) p. 349, para. 1476; Hines v. Commonwealth (1923), 117 S.E. 843, and the dissenting judgment of Mr. Justice Holmes in Donnelly v. U.S. (1913), 228 U.S. 243.

It has generally been accepted as the law of England since The Sussex Peerage case that the exception to the rule excluding hearsay evidence in respect of declarations made against interest is confined to statements made against pecuniary or proprietary interest and does not permit evidence of a statement by a deceased person against his penal interest.

The leading authority in the United States is the decision of the Supreme Court of the United States in the Donnelly case, referred to above, in which the majority of the Court followed The Sussex Peerage case. Mr. Justice Holmes, who, along with two other members of the Court dissented, pointed out in his reasons that the confession of the murder by the deceased which was sought to be put in evidence was “coupled with circumstances pointing to its truth”. Counsel for the appellant has cited to us a number of cases in which State Courts have extended the exception to the hearsay rule to include statements against penal interest. On the other hand, the United States Court of Appeal, Ninth Circuit, in Scolari v. United States[3], when requested to exercise authority to decline to follow the Donnelly case refused to do so.

The Court of Appeal in the present case, while pointing out that it was not bound by The Sussex Peerage case and thus would be free to choose between the two opposing contentions, was of the view that the facts of the present case did not make it necessary or propitious to settle the law. The Court held that, even if a declaration against penal interest was not necessarily inadmissible, the confession of Eper in question here was not a declaration against penal interest. The reason for so holding is stated as follows:

At the time of both the alleged declarations in question in this case Eper was an escaped convict under sentence of life imprisonment. In the result, he could not be sentenced to a consecutive sentence so that there could be no penal consequence for the crime admitted to

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which he was vulnerable: R. v. Sinclair (1972), 6 C.C.C. (2d) 523. The completely uncertain effect on his prospects of parole in the event of another conviction is too remote and uncertain to be regarded as a penal consequence. In addition, at the time of the declaration to Dinardo he and Eper had been accomplices in crimes for many years and Dinardo, on his evidence, was acting as an accessory after the fact in assisting concealment of evidence of the crime declared. Dinardo testified he would not have given his evidence if Eper were alive.

The Court of Appeal enunciated a number of principles which would have to be applied in determining whether a declaration is against penal interest which, in its view, would have to be applied in addition to those applicable in determining whether a declaration is against pecuniary or proprietary interest. They are as follows:

1. The declaration would have to be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result. In Sussex Peerage the Lord Chancellor would not have admitted the declaration in any event of the rule because it was made to the declarant’s son. In ordinary circumstances where a declaration is made for instance to an unestranged son, wife or mother, the psychological assurance of reliability is lacking because of (sic) risk of penal consequences is not real and the declarant may have motives such as a desire for self‑aggrandizement or to shock which makes the declaration unreliable.

2. The vulnerability to penal consequences would have to be not remote.

“…the declaration sought to be given in evidence must be considered in its totality. If upon the whole tenor the weight is in favour of the declarant, it is not against his interest”: Re Van Beelen, p. 208; R. v. Agawa (1975) 11 O.R. (2d) 176.

In a doubtful case a Court might properly consider whether or not there are other circumstances connecting the declarant with the crime and whether or not there is any connection between the declarant and the accused.

The declarant would have to be unavailable by reason of death, insanity, grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the Court extends. A declarant would not be unavailable in the circumstances that existed in R. v. Agawa.