R. v. Kokotailo (J.R.), 2011 BCCA 465

• Judge: Prowse, Frankel and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 22, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 465;(2011), 313 B.C.A.C. 91 (CA)

R. v. Kokotailo (J.R.) (2011), 313 B.C.A.C. 91 (CA);

    533 W.A.C. 91

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. NO.037

Regina (respondent) v. Jamie Robert Kokotailo (appellant)

(CA037454; 2011 BCCA 465)

Indexed As: R. v. Kokotailo (J.R.)

British Columbia Court of Appeal

Prowse, Frankel and Hinkson, JJ.A.

November 22, 2011.

Summary:

The accused admittedly stabbed his wife nine times when she returned home following a week-end trip to visit the man with whom she was having an extra-marital affair. The Crown alleged that the accused knew of the affair and planned to kill his wife. The accused submitted that he had acted in self-defence when provoked by his wife with a knife. He was convicted by a jury of first degree murder. The accused appealed his conviction on the grounds "that the trial judge erred in failing to instruct the jury on the proper use of prior consistent and inconsistent statements of witnesses; that the trial judge erred in failing to instruct the jury that he had a constitutional right to prior disclosure of the case against him in light of Crown counsel's submission that he had tailored his evidence to fit the disclosure; and that Crown counsel's address to the jury was so inflammatory and prejudicial that he did not receive a fair trial." The Crown submitted that if the trial judge erred in failing to instruct the jury on the permissible uses of prior statements of witnesses, s. 686(1)(b)(iii) of the Criminal Code applied to sustain the conviction.

The British Columbia Court of Appeal, in a judgment reported (2008), 254 B.C.A.C. 262; 426 W.A.C. 262, allowed the appeal and ordered a new trial on the ground that the jury was not properly instructed on the proper use of prior consistent and inconsistent statements of witnesses. Section 686(1)(b)(iii) did not apply, because the verdict would not necessarily have been the same had the jury been properly instructed. A jury again convicted the accused of first degree murder. The accused appealed his conviction on the ground that the trial judge misdirected the jury by telling them that they could infer, as a matter of common sense, that sane and sober persons intended the natural and probable consequences of their acts. The accused argued that such an instruction should not be given where an accused was unable to recall what his or her intention was at the relevant time. Although there was no evidence that the accused had a mental disorder, or was under the influence of alcohol or drugs at the time of the stabbing, he claimed that he had blacked out and could remember nothing.

The British Columbia Court of Appeal dismissed the appeal. The jury instructions were appropriate.

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - The accused admitted stabbing his wife to death after she returned from a weekend extra-marital affair - There was no evidence that the accused was influenced by a mental disorder, alcohol or drugs at the relevant time - However, the accused claimed to have no memory of his specific intent because he blacked out - At issue was whether the accused had the requisite intent for murder - The trial judge instructed the jury that they may "as a matter of common sense, draw an inference that a sane and sober person intends the natural and probable consequences of his or her voluntary actions" - The jury convicted the accused of first degree murder - On appeal, the accused argued that it was inappropriate to give a "common sense inference" instruction where an accused was unable to recall his specific intent at the relevant time or where an accused chose not to testify - The British Columbia Court of Appeal, in dismissing the accused's conviction appeal, held that it was appropriate for the trial judge to give the "common sense inference" instruction to the jury - See paragraphs 16 to 28.

Cases Noticed:

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 13].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 14].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 18].

R. v. Seymour (J.) (1995), 56 B.C.A.C. 173; 92 W.A.C. 173; 97 C.C.C.(3d) 36 (C.A.), refd to. [para. 18].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 19].

R. v. W.J.D. (2006), 285 Sask.R. 225; 378 W.A.C. 225; 212 C.C.C.(3d) 290; 2006 SKCA 91, refd to. [para. 19].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 26].

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), refd to. [para. 28].

R. v. Woolin, [1999] 1 A.C. 82, refd to. [para. 28].

Counsel:

G. Orris, Q.C., for the appellant;

S.J. Brown, for the respondent.

This appeal was heard on September 23, 2011, at Vancouver, B.C., before Prowse, Frankel and Hinkson, JJ.A., of the British Columbia Court of Appeal.

On November 22, 2011, Frankel, J.A., delivered the following judgment for the Court of Appeal.