Bernard Hartling is led from the courthouse in this file photo from his murder trial last December.
The Nova Scotia Court of Appeal has rejected an appeal by Bernard (Bernie) Hartling who was charged and sentenced for the murder of Kenneth McNamara with a sawed off shotgun on Nov. 14, 2009 in Pictou County.
Hartling admitted that he had shot McNamara with a shotgun, but claimed he had brandished the gun in self defence and the discharge of the gun was an accident. The jury convicted on the lesser charge of second degree murder.
The appellant says the verdict is tainted by errors in the jury charge; by the trial judge’s exclusion of evidence, and the admission of evidence without appropriate limiting instructions.
The Issues that the Court of Appeal was asked to look at was did the trial judge err in his charge to the jury on selfdefence;
by not directing the jury on the partial defence of provocation, his evidentiary rulings and by not providing proper instructions on the evidence the jury heard.
In the documents released this afternoon, Justice Duncan R. Beveridge dismissed the appeal on the basis that the defence counsel at trial did not request the jury be charged on provocation, nor voice objection to any aspect of the judge’s instructions to the jury.
“There was no air of reality to the defence of provocation,” Beveridge wrote. “Therefore the trial judge did not err in law in failing to charge the jury on this defence. The jury heard a good deal of evidence that put the appellant in a bad light. Such evidence was admissible as a necessary part of the narrative, motive, and went to challenge the credibility of the exculpatory explanation by the appellant. It was legal error not to give a limiting instruction on the proper and potentially improper use the jury could make of this evidence, but the error caused no substantial wrong or miscarriage of justice. While there were some slips in language in the jury charge, overall the charge was fair and adequately equipped the jury to carry out its adjudicative function.”