R. v. Seaward, (1976) 11 Nfld. & P.E.I.R. 415 (NFCA)

CourtNewfoundland Court of Appeal
Case DateNovember 01, 1976
JurisdictionNewfoundland and Labrador
Citations(1976), 11 Nfld. & P.E.I.R. 415 (NFCA)

R. v. Seaward (1976), 11 Nfld. & P.E.I.R. 415 (NFCA);

    22 A.P.R. 415

MLB headnote and full text

R. v. Seaward

Indexed As: R. v. Seaward

Newfoundland Supreme Court

Court of Appeal

Morgan, Gushue, JJ.A., and Noel, J. (ex officio)

November 1, 1976.

Summary:

This case arose out of a charge of murder against the accused under s. 212 of the Criminal Code of Canada, R.S.C. 1970, c. C- 34. The accused beat his wife to death after she and another man in the presence of the accused discussed an incident seven years previously when the man tried to seduce the daughter of the accused and his wife. The accused knew of the incident soon after it happened and had always remained friends with the man. The accused was charged with murder and was convicted before a judge and jury. The accused appealed.

The Newfoundland Court of Appeal dismissed the appeal and affirmed the conviction of the accused. The Court of Appeal held that the trial judge did not err in his instructions to the jury on the effect of drunkenness and the concept of reasonable doubt and in expressing his opinion on the facts. The Court of Appeal held that the trial judge was correct in withdrawing the question of provocation from the jury and in not applying the Rule in Hodge's Case.

Criminal Law - Topic 38

General principles - Mens rea - Lack of understanding or capacity caused by intoxication - Charge of murder - The Newfoundland Court of Appeal upheld a charge to the jury by the trial judge on the effect of drunkenness, where the trial judge explained that drunkenness was a factor to be taken into account in determining whether or not the accused had the intent to commit murder - See paragraphs 10 to 13.

Criminal Law - Topic 1281

Murder - Provocation - General principles - What constitutes "sudden provocation" - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 215 - Provocation by a third party - The Newfoundland Court of Appeal stated that the defence of provocation could apply where an accused, under the dominion of a passion provoked by wrong or insult, attacks a person who was not in any way concerned with the act of provocation - See paragraph 14.

Criminal Law - Topic 1281

Murder - Provocation - General principles - What constitutes "sudden provocation" - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 215 - The accused beat his wife to death after she and another man in the presence of the accused discussed an incident seven years previously when the man tried to seduce the daughter of the accused and his wife - The accused knew of the incident soon after it happened and had always remained friends with the man - The Newfoundland Court of Appeal held that the facts did not constitute evidence of sudden provocation and that the trial judge was correct in withdrawing the question of provocation from the jury - See paragraphs 14 to 19.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - The accused beat his wife to death after she and another man in the presence of the accused discussed an incident seven years previously when the man tried to seduce the daughter of the accused and his wife - The accused knew of the incident soon after it happened and had always remained friends with the man - The Newfoundland Court of Appeal stated that the question of whether or not there is any evidence fit to go to the jury on provocation is a question of law for the judge and that whether such evidence is of such a nature to deprive an ordinary person of self-control is a question for the jury - The Court of Appeal held that the facts did not constitute evidence of sudden provocation and that the trial judge was correct in withdrawing the question of provocation from the jury - See paragraphs 14 to 19.

Criminal Law - Topic 4351

Procedure - Charge or direction to jury regarding burden of proof and reasonable doubt - The trial judge in explaining the concept of reasonable doubt to the jury stated that the jury should be "reasonably satisfied" of guilt to convict - The Newfoundland Court of Appeal held that the charge as a whole was satisfactory and that it was not misdirection to use the words "reasonably satisfied" - See paragraphs 6 to 9.

Criminal Law - Topic 4356

Procedure - Charge or direction to jury - Directions regarding intent or mens rea - Drunkenness - The Newfoundland Court of Appeal upheld the charge to the jury by the trial judge on the effect of drunkenness, where the trial judge explained that drunkenness was a factor to be taken into account in determining whether or not the accused had the intent to commit murder - See paragraphs 10 to 13.

Criminal Law - Topic 4387

Procedure - Charge or direction to jury - Comment on facts by trial judge - The Newfoundland Court of Appeal held that it was proper for the trial judge in his charge to the jury to express his opinion on the facts, as long as it was made clear to the jury that his comments should not influence them on their decision on the facts - See paragraph 23.

Evidence - Topic 305

Criminal evidence - Rule in Hodge's Case - When applicable - The Newfoundland Court of Appeal stated that the Rule in Hodge's Case is applicable only when the evidence relied on by the Crown is mainly or wholly circumstantial or when the proof of an essential ingredient of the offence charged depends solely upon circumstantial evidence - The Court of Appeal held that the Rule in Hodge's Case was inapplicable where the theory of the defence was that the murder victim could have been run over by a vehicle after the accused beat her and left her on the road and where the victim's injuries were consistent only with a beating - See paragraphs 20 to 22.

Cases Noticed:

R. v. Summers, [1952] 1 All E.R. 1059; 36 Cr. App. Rep. 14, refd to. [para. 7].

R. v. Kritz (1949), 33 Criminal App. Rep. 169, appld. [para. 8].

Director of Public Prosecutions v. Beard, [1920] A.C. 479; 14 Cr. App. R. 159, appld. [para. 10].

R. v. Manchuk, [1937] 4 D.L.R. 737, consd. [para. 14].

Parnerkar v. The Queen (1973), 10 C.C.C.(2d) 253, appld. [para. 16].

Hodge's Case, 168 E.R. 1136, dist. [para. 20].

Lizotte v. The King (1951), 99 C.C.C. 113, appld. [para. 22].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 212(a) [para. 11]; sect. 215 [para. 16].

Counsel:

John Kelly, for the respondent;

Frank Fowler, for the appellant.

This appeal was heard at St. John's, Newfoundland, before MORGAN, GUSHUE, JJ.A., and NOEL, J. (ex officio), of the Newfoundland Supreme Court, Court of Appeal.

MORGAN, J.A., delivered the following judgment of the Court of Appeal:

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