Case information

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(Publication ban)

Criminal law - Trial - Charge to jury - Evidence - Post-offence conduct - Whether the trial judge failed to instruct the jury about the limited value of post-offence conduct in determining intent of planning and deliberation when a related offence is admitted - Whether the trial judge failed to distinguish between the various degrees of crime or guilt intention at issue in the case.

The Appellant, George William Allen, was convicted of first degree murder. The victim had rented a part of the Appellant’s land to carry out a firewood business, but because he failed to pay rent under the agreement, he was no longer welcome on the property. The victim nevertheless brought more logs onto the Appellant’s land on February 7, 2004, and it is alleged that after a confrontation occurred between the victim and the Appellant’s wife, the Appellant struck the victim on the head, killing him, and buried him on his property. On appeal, the Appellant challenged the use the jury could make of a variety of his post-offence conduct as part of an overall circumstantial case regarding whether he had, contrary to his testimony, the requisite intent to kill the victim and to have planned to do so. The majority of the Court of Appeal dismissed the appeal. Hunt J.A., dissenting, would have allowed the appeal on the basis that the trial judge’s treatment of certain elements of the post-offence conduct failed to draw sufficiently to the jury’s attention that such conduct was relevant to whether the killing was planned and deliberate only if the jury took a particular view of the evidence concerning what the Appellant did before the killing. Hunt J.A. would also have allowed the appeal on the basis that the trial judge had failed to draw a distinction between the use of post-offence conduct as exemplifying guilt in general and the limited way in which it might be used to show that the Appellant was guilty of first degree murder. She would have ordered a new trial.