Did a Newfoundland judge make a mistake in failing to explain to kill vs. to murder?

Judge holding documents.
Judge holding documents. Stock photo from iStock/Getty Images.

In the legal world semantics can make or break a case. One little word or one lack of explanation or clarification can make a world of difference to a case.

Such is the situation in Neville v. R, a case in which a young man stabbed two people with whom he had a continual conflict. As a result of the stabbing, one person died and the other was seriously injured. At the trial level, Neville was found guilty of attempted murder and second-degree murder.

During the trial, the judge was instructing the jury on different concepts such as the meaning of murder, including first and second-degree murder, attempted murder, manslaughter, self-defence, aggravated assault, provocation and more.

When the jury came back from deliberations – that is the process in which jurors discuss the merits of the case in closed chambers - they asked the judge to clarify for them whether “to kill” is the same as “to murder.” The judge didn’t really explain whether there was a difference and instead pointed the jurors to written instructions.

Neville appealed the decision, saying that it was an error for the trial judge not to properly instruct the jurors.

The case went to the Supreme Court of Newfoundland and Labrador Court of Appeal, where the court upheld Neville’s sentence and found that the trial judge gave a sufficient answer. However, Judge Malcolm Rowe disagreed with the majority and said that the judge did make an error.

Rowe’s dissent had to do with semantics and clarification. Rowe found that in not clarifying whether there was a difference between “to kill” and “to murder,” the judge committed an error.

Though he is unsure why the jury sought this type of clarification, he believes it has to do with the issue of intent for murder, and that it was intent that the jury was trying to clarify. Rowe also found that in this particular case, based on the specific circumstances, intent for murder was a critical issue.

Rowe quoted the case R. v. S. (W.D.), which stated:

“With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.” (Emphasis added.)

In failing to help the juror clarify their confusion is where the trial judge erred, Rowe found, because the judge has the duty to clarify any confusion the jurors may have. If the judge doesn’t know what the jurors are confused about, then he needs to figure it out.

Neville then appealed to the Supreme Court based on Rowe’s dissent and the court agreed to hear the case, which it did on November 5.

In the appellant’s factum to the Supreme Court, the appellant (Neville) argues, much in the line what Rowe argued, that the trial judge must clarify the confusion of jurors.

The factum also made the point that when the jurors asked the “kill vs. murder” question, the Crown, the defence and the trial judge were confused about what the question actually meant.

Furthermore, the appellant argues, there is a problem in a case where the jury did not understand the difference between “to kill” and “to murder” where an accused has been found guilty of attempted murder and second degree murder. The appellant referred back to Rowe’s reasoning that he believed the jury sought to clarify intent to murder with their question and that, in this specific case, the question of intent was a critical issue.

In the respondent’s factum, the Crown (prosecution) argues that the judge couldn’t have committed an error, because “there is no conceivable way the jury could have misread “to kill” which might have impacted their eventual verdict.” Essentially the respondent is saying clarification isn’t really an issue here, and even if it was, it’s such a minor one as to be of little consequence.

Now the Supreme Court of Canada has to decide whether they agree with Judge Malcolm Rowe and Neville, and whether in failing to help jurors in their search for clarification - and hence not getting behind the jury’s question as to intent – the trial judge made an error.

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