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CRIMINAL CODE OFFENCES - Offences against person and reputation - Homicide - Second degree murder

Tuesday, July 04, 2017 @ 8:25 AM  


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Appeal by the accused, Fries, from a conviction for second degree murder. The accused was among a dozen attendees at a house party. As the accused left the party, an altercation with the victim ensued. None of the eyewitnesses saw the whole fight. The accused's girlfriend testified she saw the accused punch the victim once in the middle area. The accused's friend testified that he was intoxicated and his view was obstructed. He stated he saw the accused punch the victim two or three times while holding a metal object. No other witnesses mentioned a weapon. After the altercation, the victim exited and ran to a back alley. The accused's friend testified that the accused expressed hope that the victim made it to a hospital. The victim was found dead in a nearby parking lot several hours later. An autopsy revealed that the victim suffered several stab wounds, including a fatal wound to the heart. At trial, the accused did not testify, but advanced a defence that somebody else stabbed the victim and that the police investigation into another perpetrator was inadequate. The accused was convicted by a judge sitting with a jury. The accused appealed.

HELD: Appeal dismissed. Considerable weight was attributed to the fact that trial defence counsel did not object to the draft jury instruction on burden of proof in cases involving circumstantial evidence. No objection was made to the fact that the instructions did not include a special caution on the jury's potential use of the testimony of the accused's friend. The charge reviewed the frailties with the friend's evidence and noted the fact that the police investigation did not include DNA analysis of every seized item. A functional review of the charge indicated the jury was properly instructed that the law allowed for a finding of reasonable doubt based on the absence of evidence. The jury's rejection of the defence theory did not render its verdict unreasonable. The defence was wholly speculative and was unsupported by the evidentiary record or the absence of evidence. Nobody other than the accused had the opportunity to inflict the injuries sustained by the victim prior to his flight from the party.

R. v. Fries, [2017] M.J. No. 172, Manitoba Court of Appeal, H.C. Beard, D.M. Cameron and C.J. Mainella JJ.A., June 2, 2017. Digest No. TLD-July32017001