R. v. Neville (S.M.), (2015) 365 Nfld. & P.E.I.R. 1 (NLCA)

• Judge: Welsh, Rowe and Barry, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 08, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 365 Nfld. & P.E.I.R. 1 (NLCA);2015 NLCA 16

R. v. Neville (S.M.) (2015), 365 Nfld. & P.E.I.R. 1 (NLCA);

    1138 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AP.012

Steven Michael Neville (appellant) v. Her Majesty the Queen (respondent)

(13/25; 2015 NLCA 16)

Indexed As: R. v. Neville (S.M.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, Rowe and Barry, JJ.A.

April 10, 2015.

Summary:

The accused was convicted of the second degree murder of Flynn and the attempted murder of Dwyer. The accused appealed the convictions.

The Newfoundland and Labrador Court of Appeal, Rowe, J.A., dissenting, dismissed the appeal.

Editor's note: there are several cases involving this accused.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - The accused got out of a car as it passed Dwyer and Flynn when they started to run after the car - A fight was engaged - Within seconds the accused stabbed Dwyer - Dwyer succumbed to the wounds, ran away and fell - The accused and Flynn immediately engaged in a fight - Again, within seconds the accused stabbed Flynn - Flynn was able to return blows - Then a stab wound inflicted by the accused to Flynn's temple pierced his skull and brain - It was a fatal wound - The accused was convicted of second degree murder of Flynn and attempted murder of Dwyer - He appealed the convictions, asserting that the trial judge erred by failing to instruct the jury that, if they rejected self-defence and provocation, it was necessary for them to consider the cumulative effect of the evidence related to those defences in determining whether the accused had the intent necessary for murder ("rolled-up charge") - The Newfoundland and Labrador Court of Appeal dismissed the appeal - "[T]he rolled-up charge, serves to remind the jury to consider all the evidence, including the evidence that relates to defences, when determining the issue of intent to commit murder or attempted murder. Whether a trial judge errs by omitting or not providing an adequate rolled-up charge will depend on the particular circumstances. The purpose of the charge is to alert the jury not to compartmentalize the evidence, but to use it as appropriate for various issues." - In his charge, the trial judge repeatedly referred to the principle that all the evidence had to be considered with respect to each issue - The trial judge's instructions did not provide a basis for concluding that the jury might have mixed the elements of the offences and defences with the use of the evidence for the purpose of analyzing each - The trial judge's instructions to the jury satisfied the appropriate standard - See paragraphs 11 to 30.

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - The Newfoundland and Labrador Court of Appeal stated that "when a question is put by the jury, what is required is 'meaningful assistance' ... . The following propositions are gleaned from the ... jurisprudence: '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. 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.'" - See paragraph 41.

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - The accused got out of a car as it passed Dwyer and Flynn when they started to run after the car - A fight was engaged - Within seconds the accused stabbed Dwyer - Dwyer succumbed to the wounds, ran away and fell - The accused and Flynn immediately engaged in a fight - Again, within seconds the accused stabbed Flynn - Flynn was able to return blows - Then a stab wound inflicted by the accused to Flynn's temple pierced his skull and brain - It was a fatal wound - The accused was convicted of the second degree murder of Flynn and the attempted murder of Dwyer - He appealed the convictions, asserting that the trial judge erred in failing to adequately respond to the jury's request to clarify whether "the legal definition of 'to kill' is the same as 'to murder'" - The Newfoundland and Labrador Court of Appeal dismissed the appeal - Reference back to the written instructions, together with the reminder that additional questions could be put, was a sufficient answer in the particular circumstances - See paragraphs 35 to 55.

Cases Noticed:

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. 10].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 19].

R. v. Nealy (1986), 17 O.A.C. 164; 30 C.C.C.(3d) 460 (C.A.), refd to. [para. 21].

R. v. Settee (1990), 83 Sask.R. 132; 55 C.C.C.(3d) 431 (C.A.), refd to. [para. 22].

R. v. Kent (P.S.) (2005), 212 B.C.A.C. 98; 350 W.A.C. 98; 196 C.C.C.(3d) 528; 2005 BCCA 238, refd to. [para. 23].

R. v. Bouchard (S.) (2013), 314 O.A.C. 113; 305 C.C.C.(3d) 240; 2013 ONCA 791, affd. [2014] 3 S.C.R. 283; 464 N.R. 1; 327 O.A.C. 1; 2014 SCC 64, refd to. [para. 24].

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372; 2001 SCC 30, refd to. [para. 32].

R. v. Layton (C.A.) (2009), 245 Man.R.(2d) 26; 466 W.A.C. 26; 390 N.R. 340; 2009 SCC 36, refd to. [para. 35].

R. v. Allen (D.) (2002), 208 Nfld. & P.E.I.R. 250; 624 A.P.R. 250; 2002 NFCA 2, revd. [2003] 1 S.C.R. 223; 302 N.R. 62; 225 Nfld. & P.E.I.R. 1; 672 A.P.R. 1; 2003 SCC 18, refd to. [para. 38].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 38].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 38].

R. v. Mohamed (1991), 64 C.C.C.(3d) 1 (B.C.C.A.), refd to. [para. 40].

R. v. Fleiner (1985), 23 C.C.C.(3d) 415 (Ont. C.A.), refd to. [para. 40].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 62].

Authors and Works Noticed:

Canadian Judicial Council, Model Jury Instructions, generally [para. 27].

Counsel:

Derek J. Hogan, for the appellant;

Lloyd M. Strickland, for the respondent.

This appeal was heard on January 8, 2015, by Welsh, Rowe and Barry, JJ.A., of the Newfoundland and Labrador Court of Appeal. The reasons for judgement of the Court of Appeal were delivered on April 10, 2015 and included the following opinions:

Welsh, J.A. (Barry, J.A., concurring) - See paragraphs 1 to 57;

Rowe, J.A., dissenting - see paragraphs 58 to 64.