R. v. Tait, (1978) 5 Sask.R. 193 (CA)

• Judge: Culliton, C.J.S., Brownridge and Bayda, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 11, 1978
• Jurisdiction: Saskatchewan
• Citations: (1978), 5 Sask.R. 193 (CA)

R. v. Tait (1978), 5 Sask.R. 193 (CA)

MLB headnote and full text

R. v. Tait

(7798)

Indexed As: R. v. Tait

Saskatchewan Court of Appeal

Culliton, C.J.S., Brownridge and Bayda, JJ.A.

December 11, 1978.

Summary:

This case arose out of a charge of first degree murder. The accused, armed with a knife and intending to steal money, entered the home of a 78 year old woman. The woman was asleep in the bed at the time, but the accused woke her. The woman accused the accused of stealing. The accused reacted by stabbing the woman 21 times. The accused was convicted by judge and jury of the charge of first degree murder. The accused appealed his conviction and alternatively submitted that, if he was guilty, the conviction should be one for second degree murder rather than first degree murder.

The Saskatchewan Court of Appeal dismissed the appeal against conviction, but substituted the conviction for second degree murder on the ground that the facts did not support a first degree murder conviction.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - An accused was convicted of first degree murder by a judge and jury - At trial a police officer testified as an expert witness in the field of fingerprints and palm prints - The officer had taken courses in fingerprinting, had long experience in the field and was previously accepted by other courts as an expert - The accused appealed his conviction on the ground that the trial judge erred in holding the officer was an expert - The Saskatchewan Court of Appeal dismissed the appeal against conviction and held that the trial judge did not err - See paragraphs 49 and 50.

Criminal Law - Topic 5341

Evidence and witnesses - Confessions and voluntary statements - Whether voluntary and admissible - Review of ruling of trial judge by appeal court - In the course of a murder investigation, the police requested the accused to attend at the police station for questioning - The accused went to the station at 10:15 a.m. - The accused was given three 15 minute interviews - The accused was then taken to the murder scene - At approximately 6:40 p.m. the accused was taken back to the police station - A short while later the accused vomited - An officer then asked the accused if he wanted to talk - The accused admitted murdering the victim and stated that he was willing to give a statement - The accused was advised that he was under arrest, he was charged with the murder and he was read the police warning - During the statement the accused vomited three more times - At trial, after a lengthy voir dire, the trial judge held the accused's statement voluntary and admissible - A jury found the accused guilty - The accused appealed on the ground that the police procedure was oppressive and his statement was not voluntary - The Saskatchewan Court of Appeal dismissed the appeal against conviction and held that the statement was voluntary and admissible - See paragraphs 1 to 46.

Criminal Law - Topic 4382

Procedure - Charge or directions to jury - Misdirection - What constitutes - The accused was charged with first degree murder - The accused, armed with a knife, entered a home to steal money - The homeowner awoke, saw the accused and accused him of stealing - The accused reacted by stabbing the homeowner, a 78 year old lady, 21 times - The trial judge directed the jury on the charge of first degree murder and the accused was convicted - The accused appealed on the ground that the trial judge erred in putting the question of first degree murder to the accused, because the evidence did not support the charge - The Saskatchewan Court of Appeal dismissed the appeal against conviction, but substituted a conviction of second degree murder - The court held that the trial judge erred in instructing the jury on the charge of first degree murder when the facts indicated second degree murder - See paragraph 53.

Criminal Law - Topic 1268

Offences against person and reputation - Murder - General principles - Second degree murder - What constitutes - The accused, armed with a knife, entered a home intending to steal money - The homeowner awoke and accused the accused of stealing - The accused stabbed the homeowner 21 times - The accused was charged and convicted of first degree murder - The accused appealed his conviction on the ground that the facts did not support a charge of first degree murder - The Saskatchewan Court of Appeal dismissed the appeal against conviction, but substituted a conviction for second degree murder, because the facts indicated the offence of second degree murder.

Cases Noticed:

R. v. Fitton, [1965] S.C.R. 958, consd. [para. 44].

Boudreau v. The King, [1949] S.C.R. 262, consd. [para. 45].

R. v. Wolbaum (1965), 50 W.W.R.(N.S.) 405, refd to. [para. 46].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 218 [para. 1].

Counsel:

Gerald N. Albright, for the appellant, Tait;

Kenneth W. MacKay, for the Crown.

This case was heard at Regina, Saskatchewan, on November 30, 1978, by CULLITON, C.J.S., BROWNRIDGE and BAYDA, JJ.A., of the Saskatchewan Court of Appeal.

On December 11, 1978, CULLITON, C.J.S., delivered the following judgment for the Court of Appeal.