Can a Single Word in a Jury Charge Overturn a Murder Conviction?

Joseph A. Neuberger and Michael P. Bury, Neuberger & Partners LLP, Criminal Lawyers

The distinction between “likely” and “possible” may appear inconsequential to the lay observer however in R. v. Rosbergen, 2026 BCCA 314, that distinction proved decisive: a single misstated word in the trial judge’s charge to the jury contributed to the reversal of a second-degree murder conviction and the ordering of a new trial. The judgment of the British Columbia Court of Appeal serves as a considered reminder that when a trial judge summarizes the evidence for a jury, precision is not merely desirable but essential to the integrity of the verdict.

01 • THE FACTUAL BACKGROUND

Allen Skedden was reported missing on February 21, 2017. His fully clothed body was recovered from a rocky bank of the Fraser River in Richmond eleven days later, with a piece of duct tape near his mouth and a further piece resting behind his neck. There was no eyewitness to the death, no recorded confession, and no direct physical evidence linking the accused to the killing. The Crown’s murder case rested instead upon a body of circumstantial evidence and the testimony of a single witness of significant credibility concerns.

The appellant, Adrianus Rosbergen, was 74 years of age at the time of Mr. Skedden’s disappearance and had formerly been his landlord. The two men were engaged in a monetary dispute, and, on the appellant’s own account, they had a violent physical altercation on the evening in question. The appellant maintained that Mr. Skedden thereafter departed the scene, alive, in a van. The Crown advanced a materially different theory: that the appellant beat Mr. Skedden, bound his head with tape, and disposed of his body in the river.

To connect the physical evidence to that theory, the Crown relied upon Richard Anderson, an acquaintance of the appellant who testified that the appellant had requested his assistance in cleaning a storage trailer, that the wash water had turned red, and that the appellant had subsequently made statements amounting to a confession. Mr. Anderson was precisely the sort of witness whose evidence the law requires be approached with considerable caution.

02 • THE PATHOLOGIST’S EVIDENCE

The forensic pathologist, Dr. Morin, provided evidence on the central question of causation. His opinion was that the cause of death could not be determined. The blunt force injuries were, in his assessment, insufficient to account for the death. He excluded natural causes, but he could neither exclude drowning or hypothermia nor conclude that the death was the result of a homicide.

With respect to suffocation, Dr. Morin was notably measured. Suffocation, he explained, is frequently a diagnosis of exclusion, leaving little or no identifiable evidence at autopsy. He acknowledged that tape applied around the head could cause a person to suffocate. He did not, however, opine that this had in fact occurred, nor that suffocation was the probable cause of death.

It was in the trial judge’s summary of this evidence that the difficulty arose. In her final charge to the jury, the judge characterized the pathologist’s opinion in the following terms: “Suffocation is likely but cannot be determined on the basis of the autopsy alone.” Dr. Morin had given no such evidence. At its highest, his testimony identified suffocation as a possibility.

“Likely” denotes a firm conclusion held with considerable certainty; “possible” denotes only that a cause might obtain, among other alternatives.

03 • THE SIGNIFICANCE OF THE MISSTATEMENT

The Court of Appeal drew a clear distinction between the two formulations. As Fleming J.A. observed, there is an obvious and significant difference between a pathologist characterizing a cause of death as “likely” and characterizing it as “possible.” The former denotes a firm conclusion held with a considerable degree of certainty; the latter denotes only that a cause might obtain, among other alternatives, and conveys no comparable level of confidence.

The governing principle is well established. A misstatement of the evidence in a jury charge does not ordinarily constitute reversible error, particularly in the absence of an objection at trial. Such a misstatement becomes reversible, however, where it bears upon an important item of evidence relating to a determinative issue. The Court concluded that this misstatement met that threshold. Causation and intent were the central issues at trial and recasting the pathologist’s tentative opinion as a confident one furnished the jury with a reasoning path — unsupported by the evidence actually given — that led directly to the Crown’s theory of intentional suffocation by binding.

The Court further observed that juries are instructed not to reject an expert’s opinion without good reason. Consequently, the instruction intended to ensure that expert evidence received appropriate weight carried the risk of entrenching a version of that evidence the expert had never advanced. Because the expert summaries were the only witness summaries contained in the charge, they assumed particular prominence, and, in the absence of any corrective instruction, the jury was left to assume that the charge was accurate.

A second, less serious misstatement — that the red mark on Mr. Skedden’s neck “suggests strangulation,” whereas Dr. Morin had testified only that it caused him to “wonder about” strangulation — reinforced the same tendency, though the Court regarded its effect as attenuated.

04 • THE INADEQUACY OF THE VETROVEC INSTRUCTION

The foregoing error might have sufficed on its own. The Court found, however, that it was compounded by a deficiency in the instruction concerning Mr. Anderson.

Where a prosecution depends upon a witness of doubtful character, the trial judge is required to deliver a Vetrovec warning. The purpose of such a warning is to provide the jury with a clear and pointed caution that it is dangerous to convict upon the unconfirmed evidence of such a witness, and to direct the jury toward independent evidence capable of confirming the accused’s guilt.

Mr. Anderson was, as the appellant contended, the quintessential Vetrovec witness. His criminal record comprised more than sixty convictions, many involving dishonesty; he had admitted to lying to the police on numerous occasions; his evidence under cross-examination was frequently evasive and, at points, implausible; and, having himself been arrested in connection with the death, he possessed a motive to deflect responsibility.

The warning delivered to the jury was, nevertheless, conspicuously mild. In place of the “extreme caution” or “unsafe or dangerous” language reflected in the standard model instructions, the jury was told merely that it “must be cautious about accepting” Mr. Anderson’s evidence, principally on account of his criminal record. The Court of Appeal held this to be inadequate: the instruction failed to convey why it was dangerous to rely upon his evidence, or how his extensive history of dishonesty ought to inform the jury’s scrutiny of his testimony.

05 • THE CONVERGENCE OF THE TWO ERRORS

The two deficiencies operated in tandem. The Vetrovec instruction directed the jury to seek independent evidence confirming Mr. Anderson’s account, and the misstated opinion that “suffocation is likely” presented itself as precisely such confirmation. Once the misstatement is set aside, there remained little evidence to confirm either that the appellant was the perpetrator or that the death resulted from the unlawful act of binding. An insufficiently pointed warning regarding a dangerous witness, coupled with an expert opinion that had never been given but was available to corroborate him, left the jury inadequately equipped to discharge its function.

06 • CONCLUSION

The Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial on the charge of second degree murder. The appellant was not acquitted; the Court made no determination as to guilt or innocence. It held only that the trial process had failed to place before the jury an accurate account of the evidence and a suitably pointed warning concerning a witness of doubtful reliability.

The enduring significance of Rosbergen lies in its treatment of the jury charge. Although jurors are repeatedly instructed that their own recollection of the evidence governs, in practice they rely substantially upon the trial judge’s summary, which is delivered with the authority of the court and ordinarily received without correction. Where that summary elevates “possible” to “likely,” or dilutes “dangerous” to “cautious,” it may influence the outcome imperceptibly. In a case founded upon circumstantial inference and the evidence of an unsavoury witness, such words bear considerable weight. Their accuracy is not a matter of pedantry but of the difference between a verdict the law can sustain and one it cannot.

This commentary discusses a publicly reported appellate decision for general informational purposes and does not constitute legal advice.