The Crown applied to admit excerpts from a prior costs endorsement by Justice M.A. Penny as evidence in a criminal trial against John D’Souza and Peter D’Gama, who were accused of using a fake judgment bearing Justice Penny's forged signature.
The application sought to use the endorsement under the principled exception to the hearsay rule, arguing necessity (judges are not compellable) and reliability.
The court found Justice Penny not compellable to testify due to judicial immunity, as his potential testimony was inextricably intertwined with his judicial function.
The application was allowed in part, admitting factual statements from the endorsement that met threshold reliability and were not overly prejudicial, while excluding passages that reflected Justice Penny's judicial views, opinions, or reasoning, to prevent undue prejudice to the accused.
