R. v. Vokurka (E.), (2013) 339 Nfld. & P.E.I.R. 248 (NLCA)

• Judge: Welsh, Barry and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: May 08, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 339 Nfld. & P.E.I.R. 248 (NLCA);2013 NLCA 51

R. v. Vokurka (E.) (2013), 339 Nfld. & P.E.I.R. 248 (NLCA);

    1054 A.P.R. 248

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. AU.008

Eric Vokurka (appellant) v. Her Majesty the Queen (respondent)

(12/76; 2013 NLCA 51)

Indexed As: R. v. Vokurka (E.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, Barry and Hoegg, JJ.A.

August 5, 2013.

Summary:

The accused was convicted of aggravated assault for cutting the victim's arm. He appealed the conviction, alleging that the trial judge misapprehended evidence, drew an unreasonable inference from the evidence, and made an unreasonable decision.

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

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - The Newfoundland and Labrador Court of Appeal discussed the test for sufficiency of reasons - See paragraphs 26 and 27.

Criminal Law - Topic 164

Elements of criminal conduct - Motive - The Newfoundland and Labrador Court of Appeal discussed whether evidence of good relations between a victim and an accused constituted a proved absence of motive - See paragraphs 33 and 34.

Criminal Law - Topic 164

Elements of criminal conduct - Motive - The accused was convicted of aggravated assault for cutting his friend's arm - The two were intoxicated - The accused appealed the conviction, alleging that the trial judge misapprehended the evidence respecting the accused's friendly relationship with the victim - He alleged that the effect of that evidence and a lack of discord proved an absence of motive - The Newfoundland and Labrador Court of Appeal held that there was no misapprehension of evidence - The evidence of the friendly relationship did not prove that the accused was motivated, or that he lacked motivation, to cut the victim's arm - That evidence simply reinforced the absence of a proved motive - In any event, the judge did not ignore the evidence, but considered the friendly relationship in the context of the whole of the evidence - Further, motive was not an element of the offence of aggravated assault that had to be specifically addressed - See paragraphs 28 to 38.

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - The accused was convicted of aggravated assault for cutting his friend's arm - The two were intoxicated - The accused appealed the conviction, arguing that the case against him was circumstantial and that because the evidence was as consistent with accident as it was with intention, it was unreasonable for the judge to convict him (i.e., the accused relied on the circumstantial evidence rule in Hodge's Case) - The Newfoundland and Labrador Court of Appeal noted that the rule in Hodge's case only applied to the proof of the actus reus of an offence, and that the Crown's burden to establish an accused's guilt beyond a reasonable doubt incorporated the safeguard inherent in the circumstantial evidence rule - Here the issue was intention - Identification was found at trial and was admitted on appeal, so actus reus was no longer an issue - In any event, the trial judge instructed himself on the standard of proof beyond a reasonable doubt - See paragraphs 46 to 50.

Criminal Law - Topic 4369

Procedure - Jury - Charge or directions - Motive - [See both Criminal Law - Topic 164 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Criminal Law - Topic 4859

Appeals - Indictable offences - Grounds of appeal - Question of fact or question of mixed law and fact - The Newfoundland and Labrador Court of Appeal discussed the standard of review respecting factual inferences made by trial judges - See paragraphs 24 and 25.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The Newfoundland and Labrador Court of Appeal summarized the law respecting the reasonableness of a verdict in a judge-alone trial - See paragraphs 22 and 23.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused was convicted of aggravated assault for cutting his friend's arm - The two were intoxicated - The accused appealed the conviction, arguing that the verdict was unreasonable - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The verdict was one which a properly instructed jury acting judicially could reasonably render - Review of the reasons showed that they, individually and collectively, were based on inferences reasonably drawn from the evidence - The reasons were not shown to be contradicted by the evidence relied on by the judge or incompatible with evidence not otherwise contradicted or rejected by him - See paragraphs 46 to 50.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The Newfoundland and Labrador Court of Appeal summarized the law relating to misapprehension of evidence - See paragraphs 20 and 21.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused was convicted of aggravated assault for cutting his friend's arm - The two were intoxicated - The accused appealed the conviction, alleging that the trial judge misapprehended the evidence respecting the accused's intoxication - The Newfoundland and Labrador Court of Appeal held that there was no misapprehension of evidence - The trial judge's decision was replete with statements showing that he was well aware that the accused was intoxicated - The judge correctly found that intoxication was not a defence to an aggravated assault charge - He did not directly relate the evidence to the accused's alternative defence of accident; however, there was no evidence adduced for the purpose of supporting that defence - See paragraphs 39 to 43.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See second Criminal Law - Topic 164 ].

Criminal Law - Topic 5020

Appeals - Indictable offence - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See both Criminal Law - Topic 4865 ].

Evidence - Topic 222

Inferences and weight of evidence - Inferences - Inferences of intention from conduct - The accused was convicted of aggravated assault for cutting his friend's arm - The two were intoxicated - When the accused cut the victim's arm, the victim reacted by beating the accused - The trial judge relied on this evidence to support his ultimate finding that the accused possessed the requisite intention for conviction, inferring that the victim reacted violently because he thought that the accused cut his arm intentionally - The accused argued that that inference was unreasonable, because the victim might have mistakenly believed that the accused's act was intentional - The Newfoundland and Labrador Court of Appeal held that there was no basis on which to determine that the inference of intention was clearly wrong or unsupported by the evidence - See paragraphs 44 and 45 and 51 to 55.

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's case - Whether evidence consistent with other rational conclusions - [See Criminal Law - Topic 4358 ].

Practice - Topic 8807

Appeals - General principles - Duty of appellate court regarding inferences - [See Criminal Law - Topic 4859 and Evidence - Topic 222 ].

Cases Noticed:

R. v. A.A.M. (2013), 335 Nfld. & P.E.I.R. 199; 1040 A.P.R. 199; 2013 NLCA 26, refd to. [para. 20].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 21].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R.1; 2013 SCC 22, refd to. [para. 22].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 23].

R. v. Clark (D.M.) (2005), 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 24].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 25].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 26].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 26].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451; 98 D.L.R.(3d) 111, refd to. [paras. 28, 67].

R. v. Ilina (L.) (2003), 170 Man.R.(2d) 207; 285 W.A.C. 207; 172 C.C.C.(3d) 240 (C.A.), refd to. [para. 33].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 108 C.C.C.(3d) 1 (C.A.), affd. (1998), 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 34].

R. v. Walle (A.J.), [2012] 2 S.C.R. 438; 433 N.R. 1; 533 A.R. 1; 557 W.A.C. 1; 2012 SCC 41, refd to. [para. 40].

R. v. Barrett (J.R.) (2004), 222 N.S.R.(2d) 182; 701 A.P.R. 182; 2004 NSCA 38, refd to. [para. 45].

Hodge's Case (1838), 2 Lewin 227; 168 E.R. 1136, refd to. [para. 47].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.C.(2d) 18, refd to. [para. 47].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 48].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 49].

R. v. Williams (H.L.), [2003] 2 S.C.R. 134; 308 N.R. 235; 231 Nfld. & P.E.I.R. 1; 686 A.P.R. 1; 2003 SCC 41, refd to. [para. 62].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 64].

Counsel:

Derek Hogan, for the appellant;

Iain R.W. Hollett, for Her Majesty the Queen.

This appeal was heard on May 8, 2013, before Welsh, Barry and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. The following decision was delivered by the court on August 5, 2013, including the following opinions:

Hoegg, J.A. (Barry, J.A., concurring) - see paragraphs 1 to 56;

Welsh, J.A., dissenting - see paragraphs 57 to 81.