R. v. Neville, 2015 SCC 49, [2015] 3 SCR 323

SUPREME COURT OF CANADA

Between:

Steven Michael Neville

Appellant

and

Her Majesty The Queen

Respondent

Coram:  McLachlin C.J. and Abella, Moldaver, Côté and Brown JJ.

R. v. Neville, 2015 SCC 49, [2015] 3 S.C.R. 323

Steven Michael Neville                                                                                    Appellant

v.

Her Majesty The Queen                                                                              Respondent

Indexed as: R. v. Neville

2015 SCC 49

File No.: 36412.

2015: November 5.

Present: McLachlin C.J. and Abella, Moldaver, Côté and Brown JJ.

on appeal from the court of appeal for newfoundland and labrador

                    Criminal law — Jurors — Deliberations — Accused convicted of second degree murder and attempted murder — Majority of Court of Appeal erred in concluding that trial judge’s failure to clarify intent question raised by jury did not result in error — Verdicts set aside and new trial ordered.

                    APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Welsh, Rowe and Barry JJ.A.), 2015 NLCA 16, 365 Nfld. & P.E.I.R. 1, 1138 A.P.R. 1, 322 C.C.C. (3d) 480, [2015] N.J. No. 115 (QL), 2015 CarswellNfld 98 (WL Can.), affirming the accused’s convictions for second degree murder and attempted murder. Appeal allowed.

                    Derek Hogan, for the appellant.

                    Lloyd M. Strickland, for the respondent.

                    The judgment of the Court was delivered orally by

[1]                              The Chief Justice — This is an appeal as of right.  We would allow the appeal.

[2]                              The jury in its final question asked the judge to clarify the distinction between “to kill” and “to murder”.  This raised the question of intent in relation to the charges of murder and attempted murder.  The judge should have clarified the nature of the concern, and then addressed it.  Instead, the judge merely referred the jury to the written instructions he had previously given the jury.

[3]                              Viewing the record as a whole, we are satisfied that there is a possibility that the jury could have misunderstood what had to be proved for them to return guilty verdicts.  We note in this regard the Crown’s concession that the decision tree given to the jury was in error on the issue of provocation.

[4]                              The evidence is not so overwhelming as to permit us to conclude that the error would have had no effect on the verdicts.

[5]                              The appeal is allowed, the verdicts are set aside, and a new trial ordered on both charges.

                    Judgment accordingly.

                    Solicitor for the appellant: Newfoundland and Labrador Legal Aid Commission, St. John’s.

                    Solicitor for the respondent: Attorney General of Newfoundland and Labrador, St. John’s.