This review will discuss the appended jury charge delivered in Neville; specifically this review considers the issue of the trial judge’s charge on the difference between killing and murder.
This case and the charge were recently considered by the Supreme Court of Canada: R v Neville, 2015 SCC 49, 2015 CarswellNfld 429 (SCC) and the Newfoundland and Labrador Court of Appeal 2015 NLCA 16, 2015 CarswellNfld 430 (CA).
2.0 The Facts
Over the course of about a month and a half Neville had been in a number of confrontations with two men: Dwyer and Flynn. At the heart of the dispute was drug trafficking and vicious text messages of threats of violence and death were exchanged. There were also physical altercations involving weapons and a couple of car chases. All of this culminated in the early hours of October 9th, 2010. Neville was a passenger in a car. Dwyer and Flynn were chasing the car and yelling. Neville leapt from the car and went after the two men. Dwyer and Flynn ran towards Neville. Dwyer testified that when he saw Neville had a knife he turned to flee and was stabbed three times. Another witness testified that he saw Neville stabbing Flynn in the stomach- Flynn was fighting back with his fists. Although Flynn sustained numerous injuries the fatal blow was a stab wound to the head that penetrated the brain.
The jury was charged on first and second degree murder, manslaughter, attempted murder, aggravated assault, self-defence and provocation. The jury returned verdicts of guilt on second degree murder and attempted murder.
3.0 The Review
Neville appealed the convictions.
First, Neville argued that the trial judge “erred by failing to instruct the jury that if they rejected self-defence, it was necessary for them to consider the cumulative effect of the evidence related to those defences in determining whether Mr Neville had the intent necessary for murder.” [decision @para 8] In effect, this first ground of appeal is a grievance about the rolled up charge.
Second, it was argued that the trial erred in the answer provided to the jury after they asked whether the legal definition of “to kill” was the same as “to murder”.
The rolled-up charge was in part as follows:
To determine whether Steven Neville meant to kill Ryan Dwyer, you must consider all of the evidence, including the nature of the harm inflicted and anything said or done in the circumstances. You may take into account as a matter of common sense that a person usually knows what the predictable consequences of his or her actions are and means to bring them about. However, you are not required to draw that inference about Steven Neville.Indeed you must not do so, if on the whole of the evidence, you have - including the defences, you have a reasonable doubt about whether Steven Neville meant to kill Ryan Dwyer. [t is for you to decide. I have just reviewed with you the evidence related to intention to kill under count number one respecting Doug Flynn. This event all occurred together in the same time frame. You may also consider in this case whether Steven Neville, in the intention or not to kill Ryan Dwyer, was provoked to the extent that he might not have contemplated the consequences of his actions. So unless you are satisfied beyond a reasonable doubt that Steven Neville meant to kill Ryan Dwyer, you must find Steven Neville not guilty. Your deliberations will be over. If you are satisfied beyond a reasonable doubt that Steven Neville meant to kill Ryan Dwyer, you must go on to the next question. The next question then is, did Steven Neville stab Ryan Dwyer with a knife. [Charge @ p160 ln16 to p161 ln12].
The answer to the jury’s question was as follows:
So, in respect to that, I'll just run through the instruction again for you - to prove that Steven Neville had the intent required for murder, the Crown must prove beyond a reasonable doubt one of two things: either (1) that Steven Neville meant to cause Doug Flynn's death or (2) that Steven Neville meant to cause Doug Flynn bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. So, in other words, you must decide whether the Crown has proved beyond a reasonable doubt that Steven Neville meant to kill Doug Flynn or that Steven Neville meant to cause Doug Flynn bodily harm that he knew was so dangerous and serious that he knew it was likely to kill Doug Flynn and proceeded, despite his knowledge of that risk. So, that's the answer to your question and you're free to return to the jury room. Thank you. [Charge @ p223 ln 1-11].
Ruling & Comment
Ruling of the Court of Appeal
The Court of Appeal dismissed the appeal.
First, the on the issue of the rolled up charge the Court of Appeal held that the trial judge’s instruction was “adequate in the circumstances when the charge is read as a whole.” [NLCA decision @para 33] In short, the “trial judge did not err by failing to provide a more fulsome rolled-up charge or in respect of the issue of anger.” [NLCA decision @para 34]
The appellant’s argument relied upon language in R v Parent, 2001 SCC 30, 2001 CarswellQue 851 (SCC) where the Court noted that “intense anger alone is insufficient to reduce murder to manslaughter.” [@para 9].
Neville argued that Parent does not foreclose a trier of fact from considering anger in combination with other factors.” [NLCA decision @para 33] The Court of Appeal concluded that:
[o]n the facts of this case, if anger were a relevant consideration, it would fall under the assessment of provocation, which was put to the jury and rejected. There was no suggestion that he was reduced to a state of automatism as a result of anger or a combination of factors. [NLCA decision @para 33]
Second, the Court of Appeal was divided on the trial judge’s response to jury’s question.
The majority of the Court of Appeal first reviewed the law as it pertains to the jury questions. After reviewing a number of cases (R v Layton, 2009 SCC 36, R v Allen, 2003 SCC 18, R v Mohamed, 1991 CarswellBC 1172 (CA), R v Fleiner, 1985 CarswellOnt 46 (CA)) the majority summarized the following principles:
If the question has been discussed in the original instructions, it must still be answered completely, carefully and correctly.
Where the issue was dealt with in the original instructions, it may be adequate simply to repeat the instructions, particularly where the question suggests that the jury has forgotten, is having trouble recollecting, or is unsure of the earlier instructions. This may occur, for example, where the instructions were not provided to the jury in writing, or where the jury's deliberations have been lengthy.
It may be necessary to explain the issue to be clarified using different language from the original charge, while taking care to remain within the confines of judicially established principles.
It is important for the judge to ensure that the jury understands that they may return with a further or more precise question if the uncertainty has not been sufficiently clarified. The jury should never be discouraged from asking a question or seeking clarification. [NLCA decision @para 41]
If the question is unclear, the judge may take careful steps to ascertain what is meant, or may seek to find a way to answer the question in a manner that addresses any ambiguity.
Turning to the case before the Court the majority noted that:
[t]he transcript indicates that this question posed some difficulty for the judge and counsel who were of the view that the answer to the question depended on the context within which it was raised. They were clearly concerned about causing confusion for the jury if the question were answered in the absence of context. Nonetheless, there seemed to be consensus that it would be improper to seek clarification from the jury. [NLCA decision @para 46]
Applying the legal principles to the case at bar the majority was of the view that that “conundrum resulting from the apparent lack of context to the question could have been avoided by the judge instructing the jury on the answer to the question in the various contexts in which the issue may have arisen. Alternatively, to obtain a focus for the question, he could, with care, have sound information from the chairperson of the jury(…)”[NLCA decision @para 48]
The majority opined that since none of the options above were pursued by the trial judge, the Court’s task was to determine whether the answer provided was in error.
The majority held that the manner in which the trial judge used the words ‘killing’ or ‘killed’ clearly meant ‘cause death’ and thus could not have led the jury into error. Moreover, because “all of he references to ‘kill’ or its derivatives could be replaced with ‘cause the death of’ the question did not engage the concept of intention. [NLCA decision @para 54]
Thus, although the trial judge should have taken steps to better understand the question or provide an answer that was responsive to the Court’s concerns, the answer provided occasioned no error- in any event had the trial judge been in error the majority would’ve applied the curative proviso. [NLCA decision @para 55]
The dissenting judge concluded that the point of uncertainty in the jury’s questions must have related to intention. Rowe JA held:
There was no question that Stephen Neville caused Doug Flynn's death. Rather, the issue was whether Neville had the requisite intent for the killing to constitute murder. If the jury was left with a reasonable doubt as to the requisite intent for murder, then they would have convicted Neville for manslaughter. (I ignore self-defence, which had no air of reality.) To me, the inference is inescapable that the jury sought the clarification they did because they were struggling with the issue of requisite intent for murder. NLCA decision @para 61]
Referring to R v SWD, 1994 CarswellAlta 327 (SCC), Rowe JA concluded that the trial judge had an obligation to assist the jury and failed to do so in this instance. As such, the dissenting justice would have ordered a new trial.
Supreme Court of Canada Ruling
The SCC held that the judge “should have clarified the nature of the concern, and then addressed it. Instead, the judge merely referred the jury to the written instructions he had previously given the jury.” [SCC decision @para 2]
The Court also noted that the Crown had conceded that the provocation decision tree provided to the jury also contained an error. And thus in the circumstances “viewing the record as a whole (…) there is a possibility that the jury could have misunderstood what had to be proven for them to return guilty verdicts.” [SCC decision @para 3]
Jury questions are a critical window into the oft veiled thought process of the jury. No matter how exemplary the original instruction the answer to a jury question will warrant greater scrutiny. The words of Justice Cory in R v SWD, 1994 CarswellAlta 327 (SCC) are apt:
It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful matter. It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question. The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered. [@para 13]
5.0 Other Resources
Mack’s Criminal Law Bulletin- 2016-04 Duress