



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murphy, 2016 ONCA 705

DATE: 20160927

DOCKET: C58016

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Murphy

Appellant

Timothy E. Breen, for the appellant

Nadia Thomas, for the respondent

Heard: September 22, 2016

On appeal from the conviction entered on December 5, 2012
    by Justice E. Eva Frank of the Superior Court of Justice.

ENDORSEMENT

[1]

At the outset of his trial on charges of attempted murder, aggravated
    assault and assault, the appellant applied for a ruling allowing him to
    cross-examine the victim of a stabbing on his propensity for violence.  The
    victim had a criminal record with in excess of 50 convictions.

[2]

Defence counsel advised the trial judge that he planned to put
    self-defence before the jury and that he expected that a third-party witness
    would be available to support the claim that the victim had instigated the
    confrontation.

[3]

In our view, the trial judge was correct in ruling that at that stage in
    the proceeding, there was no evidentiary basis on which to permit
    cross-examination on propensity for violence.  While the victim could be
    cross-examined on his criminal record, the right to cross-examine is not
    unlimited.  Applying the rule in
R. v. Scopelliti
(1981), 63 C.C.C.
    (2d) 481 (Ont. C.A.), there must be some other appreciable evidence of the
    [victims] aggression on the occasion in question to ground cross-examination
    on propensity.  In the absence of such evidence, the trial judge was correct to
    rule that the request to cross-examine on propensity was premature.

[4]

We also note that the trial judge invited the appellant to renew his
    application if a basis to cross-examine on propensity arose later in the
    trial.  However, for his own strategic reasons, the appellant chose not to do
    so.

[5]

In any event, no prejudice ensued to the appellant.  Ultimately details of
    the victims convictions and his propensity for violence were put to the jury.

[6]

For these reasons, the appeal is dismissed.  The appellant abandoned his
    sentence appeal.

Doherty J.A.

S.E. Pepall J.A.

C.W. Hourigan J.A.


