the appellant’s group damaged a car mirror. A group of the
partygoers, estimated at between 20 and 70 people, left the house
party to confront the appellant’s group on the street. The confrontation resulted in violence. Among other things, the instigator struck the initial victim with a 2x2 tree stake. Soon after, the
appellant produced a pocket knife and stabbed one of the
partygoers (the “victim”), causing his death.
[ 3] The appellant was arrested later the same day, spoke to
a lawyer and was then interviewed by the police. The interview
lasted several hours. During this police interview, the appellant
admitted that he stabbed the victim. The appellant’s statement
was ruled voluntary and was used to cross-examine him at trial.
[ 4] The appellant appeals his conviction and submits that the
trial judge erred
( i) in finding that his statement to the police was voluntary;
( ii) by refusing to charge the jury on the defence of others;
( iii) by giving an unbalanced review of the evidence in his
instructions on self-defence; and
( iv) by effectively taking away the defence of provocation from
[ 5] For the reasons that follow, we allow the appeal.
B. The Appellant’s Statement to the Police
( 1) The trial judge’s reasons holding the appellant’s police
[ 6] In ruling the appellant’s statement voluntary, the trial
judge noted that the appellant provided an inculpatory statement
hours after repeatedly asserting his right to silence. The trial
judge concluded the appellant did so as the result of seeing a video
of his girlfriend disclosing to the police inculpatory admissions he
allegedly made to her following the stabbing.
[ 7] The trial judge held that the interviewing police officer had
a right to continue questioning the appellant, despite the appellant’s assertions of his right to silence, so long as the officer did
not offer the appellant a quid pro quo and so long as the appellant’s will was not overborne by the officer such that an atmosphere of oppression resulted.
[ 8] The trial judge found there was no evidence that the interviewing officer or any other officer made any threats or offered
any inducements to the appellant in exchange for a statement.
The trial judge concluded that the appellant’s will was not