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PROCEDURE - Questions by jury - Trial judge’s duties

Monday, March 18, 2019 @ 10:31 AM  

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Appeal by Williams from his conviction, by jury, of second degree murder. The theory of the Crown was that the appellant intervened in a fight between the victim and his friend and caused the victim’s death by stabbing him in the chest. The defence position was that there was a reasonable doubt whether the appellant, as opposed to his friend, committed the stabbing. Alternatively, the defence relied on the defence of intoxication and that the appellant did not have the required intent for murder. The appellant had been drinking heavily during the night in question. He had no memory of the stabbing. There was no direct evidence of what the appellant did during the 90-minute period when he left a restaurant and when the stabbing occurred. During its deliberations, the jury asked whether it was legally acceptable to consider whether the appellant continued to drink after he left the restaurant and the role, if any, speculation regarding the unaccounted-for time could play in its deliberations. The trial judge reminded the jury they could not speculate as to what might or might not have happened during the unaccounted time but that they could draw inferences from the facts as they found them.

HELD: Appeal allowed; new trial ordered. The trial judge failed to answer the jury’s question correctly and completely. The jury may have understood the trial judge’s answer as directing it not to consider what the appellant did during the unaccounted-for time, when there was evidence capable of supporting a reasonable, non-speculative inference that he continued to drink. The trial judge should have clarified the distinction between impermissible speculation and inference and reviewed the evidence the jury could consider in determining whether to infer that the appellant continued to drink in the time leading up to the stabbing. It was unlikely the trial judge’s instruction resolved the confusion that motivated the question. The trial judge’s answer prejudiced the appellant’s intoxication defence and was a miscarriage of justice.

R. v. Williams, [2019] B.C.J. No. 172, British Columbia Court of Appeal, E.A. Bennett, G.J. Fitch and J.J.L. Hunter JJ.A., February 8, 2019. Digest No. TLD-March182019001