Appeal from jury conviction on murder charge. Issue as to whether trial judge erred in failing to instruct the jury on the issue of alcohol consumption and intent, and the effect (if any) of defence counsel’s failure to seek the instruction.

Held: Appeal allowed, new trial.

The was some evidence of intoxication that (if believed) could have caused the jury to have a doubt regarding proof of intent to commit murder versus manslaughter. When the accused was arrested 4 hours after the stabbing he was “very intoxicated”, and there was evidence of alcohol consumption prior to the stabbing. “Defence counsel’s failure to ask for this instruction does not diminish the trial judge’s obligation to present the jury all defences available on the evidence … These errors deprived the appellant of a fair trial.”

M. Duckett, Defence Counsel